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Articles 31 - 60 of 61
Full-Text Articles in Law
A Realist Defense Of The Alien Tort Statute, Robert Knowles
A Realist Defense Of The Alien Tort Statute, Robert Knowles
Law Faculty Publications
This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …
A Path Not Taken: Hans Kelsen's Pure Theory Of Law In The Land Of Legal Realists, D. A. Jeremy Telman
A Path Not Taken: Hans Kelsen's Pure Theory Of Law In The Land Of Legal Realists, D. A. Jeremy Telman
Law Faculty Publications
This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected …
Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland
Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland
Law Faculty Publications
No abstract provided.
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Law Faculty Publications
No abstract provided.
Los Grandes Rechazos De La Sentencia Roe V. Wade, Richard Stith
Los Grandes Rechazos De La Sentencia Roe V. Wade, Richard Stith
Law Faculty Publications
: Quizás mayormente a causa del poder económico de los Estados Unidos, su alta jurisprudencia constitucional suele tener mucha influencia en otros países. En particular, la sentencia de la Corte Suprema norteamericana Roe v. Wade, que declaró un derecho al aborto durante todo el embarazo, puede conducir a la legalización del aborto a petición por los grandes tribunales de otras naciones. Pero antes de intentar de andar este surco abierto por la Corte estadounidense, los otros tribunales desearán saber que la sentencia ha sido rotundamente rechazada por fuentes bastante sorprendentes. El razonamiento de Roe ha sido rechazado por los peritos …
On The Legal Validation Of Sexual Relationships, Richard Stith
On The Legal Validation Of Sexual Relationships, Richard Stith
Law Faculty Publications
No abstract provided.
The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.
The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.
Law Faculty Publications
This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Law Faculty Publications
No abstract provided.
Abortion As Betrayal, Richard Stith
Abortion As Betrayal, Richard Stith
Law Faculty Publications
Abortion is worse than ordinary murder, principally because it involves the betrayal of a dependent by a natural guardian. Furthermore, abortion is emblematic of wider lethal betrayals of radically dependent persons. All these betrayals are rationalized precisely by the victims’ lack of autonomy-based dignity. Christianity counters by affirming the concern and respect due to those who helplessly suffer worldly disdain.
Punishment, Invalidation, And Nonvalidation: What H.L.A. Hart Did Not Explain, Richard Stith
Punishment, Invalidation, And Nonvalidation: What H.L.A. Hart Did Not Explain, Richard Stith
Law Faculty Publications
Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort …
Excluding Religion Excludes More Than Religion, Richard Stith
Excluding Religion Excludes More Than Religion, Richard Stith
Law Faculty Publications
This Article contends that excluding apparently religious perspectives from public debate may inadvertently exclude non-religious perspectives as well, consequently impoverishing public discussion. This contention is demonstrated through an examination of the current debate over embryonic stem cell research, in which the pro-life position is often declared unacceptably religious. The truth is that those who envision the unborn as under construction in the womb do not find a human being present when gestation has just begun, while those who understand the unborn to be developing see an identity of being from conception. But neither view is based on religion. To disqualify …
The Priority Of Respect: How Our Common Humanity Can Ground Our Individual Dignity, Richard Stith
The Priority Of Respect: How Our Common Humanity Can Ground Our Individual Dignity, Richard Stith
Law Faculty Publications
In this essay, we notice that the priority of persons, the unbridgeable political gap between persons and mere things, corresponds to a special sort of moral and legal treatment for persons, namely, as irreplaceable individuals. Normative language that conflates the category of person with fungible kinds of being can thus appear to justify destroying and replacing human beings, just as we do with things. Lethal consequences may result, for example, from a common but improper extension of the word “value” to persons. The attitude and act called “respect” brings forth much more adequately than “value” the distinctively individual priority of …
Fear, Irrationality, And Risk Perception, Henry L. Chambers, Jr.
Fear, Irrationality, And Risk Perception, Henry L. Chambers, Jr.
Law Faculty Publications
This brief commentary makes two points. The first is that fear can play multiple roles in any decision-making process. The second is that accurately determining whether reactions to fear are irrational is a complex task. Though neither point necessarily requires that symposium participants abandon their positions, together they suggest that extreme care is necessary in developing policy prescriptions based on the claim that fear can trigger irrationality.
Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu
Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu
Law Faculty Publications
Gulag: A History, the recipient of the 2004 Pulitzer Prize for general non-fiction, may be particularly well received by lawyers and law students because they can appreciate author Anne Applebaum's writing skills. Gulag reads like a lawyer's product: a conclusion replete with facts and arguments. Those who enjoy perfecting their legal skills while reading for pleasure should read this review. Gulag is, in essence, a successful legal brief.
México: ¿Nuevamente Una Colonia Europea?, Richard Stith
México: ¿Nuevamente Una Colonia Europea?, Richard Stith
Law Faculty Publications
No abstract provided.
Can Treaty Law Be Supreme, Directly Effective, And Autonomous--All At The Same Time?, Richard Stith, J.H.H. Weiler
Can Treaty Law Be Supreme, Directly Effective, And Autonomous--All At The Same Time?, Richard Stith, J.H.H. Weiler
Law Faculty Publications
No abstract provided.
Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles
Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles
Law Faculty Publications
No abstract provided.
Playing On Words: Judge Richard A. Posner's Appellate Opinions, 1981-82--Ruminations On Sexy Judicial Opinion Style During An Extraordinary Rookie Season, Robert F. Blomquist
Playing On Words: Judge Richard A. Posner's Appellate Opinions, 1981-82--Ruminations On Sexy Judicial Opinion Style During An Extraordinary Rookie Season, Robert F. Blomquist
Law Faculty Publications
No abstract provided.
A Secular Community May Not Execute Its Members, Richard Stith
A Secular Community May Not Execute Its Members, Richard Stith
Law Faculty Publications
The purpose of law is to provide a framework for the fulfillment of everyone in our community. We can disagree, debate, and vote about how much each of us should give of get to reach this goal. But we cannot begin to debate or doubt the wisdom of considering each human being an end rather than only a means. We as a community have problems, but none of us is the problem. Our problems are defined by the goal of universal human flourishing. To call that goal into question is to make coherent public discussion impossible. If people can just …
On The Strength Of Its Human Dignity: The Pro-Life 1993 Decision Of The German Constitutional Court, Richard Stith
On The Strength Of Its Human Dignity: The Pro-Life 1993 Decision Of The German Constitutional Court, Richard Stith
Law Faculty Publications
No abstract provided.
Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith
Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith
Law Faculty Publications
No abstract provided.
La Cour Constitutionnelle Roumaine. Premiers Pas. (The Romanian Constitutional Court. First Steps), Dana Neacsu
La Cour Constitutionnelle Roumaine. Premiers Pas. (The Romanian Constitutional Court. First Steps), Dana Neacsu
Law Faculty Publications
As a panel member, Constitutional Law Study and Research Group, University of Aix-Marseille III, France this Paper covered the early jurisprudence of the Romanian Constitutional Court (September 1993) (in French)
Will There Be A Science Of Law In The Twenty-First Century?, Richard Stith
Will There Be A Science Of Law In The Twenty-First Century?, Richard Stith
Law Faculty Publications
The skepticism of the American Legal Realists and their heirs threatens to make a politically neutral science of law impossible and thus to undermine the liberal polity which needs such a science. Ronald Dworkin attempts to refute the skeptics and defend both legal theory and liberalism. However, the author points out, Dworkin and liberalism are themselves skeptics when it comes to moral principles, and, therefore, they cannot wholly escape from similar skepticism with regard to legal principles. Both Anglo-American and Continental legal history are examined in the course of these arguments.
Generosity: A Duty Without A Right, Richard Stith
Generosity: A Duty Without A Right, Richard Stith
Law Faculty Publications
The rhetoric of rights permeates and dominates the American legal thought today. Even ethics is often considered to involve fundamentally a mutual respect for "moral rights." Understanding human rights is taken to be a sufficient condition for knowing how we do and should order our life together.
Rehnquist Or Rorty?, Carl W. Tobias
Rehnquist Or Rorty?, Carl W. Tobias
Law Faculty Publications
A postmodern response to Gene Shreve, Eighteen Feet of Clay: Thoughts on Phantom Rule 4(m), 67 Ind. L.J. 85 (1991).
Living Without Rights-- In Manners, Religion, And Law, Richard Stith
Living Without Rights-- In Manners, Religion, And Law, Richard Stith
Law Faculty Publications
No abstract provided.
An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal
An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal
Law Faculty Publications
This Article examines the role of police motivation in all facets of fourth amendment jurisprudence and demonstrates that the Court has often considered good faith as one relevant but ill-defined factor in determining substantive aspects of the fourth amendment. The Article concludes that this ambiguous and flexible approach to substantive fourth amendment rights should be utilized when applying the remedy of exclusion.
A Critique Of Abortion Rights, Richard Stith
A Critique Of Abortion Rights, Richard Stith
Law Faculty Publications
No abstract provided.
The Problem Of Public Pretense, Richard Stith
The Problem Of Public Pretense, Richard Stith
Law Faculty Publications
No abstract provided.
Toward Freedom From Value, Richard Stith
Toward Freedom From Value, Richard Stith
Law Faculty Publications
No abstract provided.