Law Commons^™

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Thomas J. McSweeney

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

The Unruliness Of Rules, Peter A. Alces

Peter A. Alces

No abstract provided.

Regret And Contract "Science", Peter A. Alces

Peter A. Alces

No abstract provided.

Forensic Constitutional Interpretation, Brian F. Havel

Brian Havel

No abstract provided.

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa has been painfully slow, …

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In (Faint) Praise Of The Large Aps: Comments On Marc Galanter, Planet Of The Aps, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Charles C. Jalloh

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the …

The Many Saliences Of Justice Michael D. Ryan: A Comparative Empirical Analysis Of Concepts Of Salience As Applied In State Appellate Courts, Scott Devito

Scott DeVito

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman

Stephen M. Feldman

Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman

Stephen M. Feldman

The Evangelical Debate Over Climate Change, John Copeland Nagle

John Copeland Nagle

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Memory And Punishment, O. Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Randy J Kozel

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

Legal Research And Legal Concepts: Where Form Molds Substance, Robert C. Berring

Robert Berring

Explores the impact of technological innovations in legal research. Information on the earliest forms of modern legal research materials; Details on the legal literature; Current situation in the field of legal research.

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

From Coitus To Commerce: Legal And Social Consequences Of Noncoital Reproduction, Joan Hollinger

Joan Hollinger

No abstract provided.

What Is Positive Law, Philippe Nonet

Philippe Nonet

No abstract provided.

Nature And Human Equality, John Coons, Patrick Brennan

John Coons

No abstract provided.

Anti-Inquisitorialism, David Sklansky

David A Sklansky

A broad and enduring theme of Atherican jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing schemes that …

The Antinomy Of Coherence And Determinacy, William A. Edmundson

William A. Edmundson

Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

François Tanguay-Renaud

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Not A System But An Order: Explaining The Legality Of The European Union, Michael Giudice, Keith Culver, Wil Waluchow, François Tanguay-Renaud

François Tanguay-Renaud

Keith Culver, Professor, UniverSud, and Micheal Guidice, Associate Professor of Philosophy, York University, explore the foundations of the legal system of the European Union.

Respondent: Wil Waluchow, McMaster University.

The Last Emperor?, Allan C. Hutchinson

Allan C. Hutchinson

No abstract provided.

Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron

Jamie Cameron

The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) …

The Place Of Legitimacy In Legal Theory, Dan Priel

Dan Priel

In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain …