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Articles 1 - 30 of 41
Full-Text Articles in Law
The Influence Of The Federalist Society On Judical Politics And Law In The United States, Peter S. K. Lynch
The Influence Of The Federalist Society On Judical Politics And Law In The United States, Peter S. K. Lynch
Theses and Dissertations--Political Science
This dissertation examines the Federalist Society, which is a network of conservative and libertarian attorneys, judges, law professors, and law students. The organization was founded by law students at Harvard Law School, Yale Law School, and the University of Chicago Law School in 1982, and has, over the last four decades, come to play a central role in law and politics in the United States. Individuals affiliated with the Federalist Society influence the law through a variety of avenues.
Federalist Society-members advance the goals of the conservative legal movement in a variety of capacities—by writing amicus curiae briefs providing the …
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye
Law Faculty Scholarly Articles
For numberless generations, jurisprudes waged total war in the
conflict among textualism, intentionalism, and purposivism.
Textualists insisted that courts must interpret statutes based on the
meaning of their text, intentionalists insisted on the intention of the
legislature, and purposivists insisted on the purpose of the statute.
Eventually, textualism prevailed. Courts universally recognize
that they are obligated to interpret statutes in light of their text, or
at least pretend that the text of the statute determined their
interpretation. And the few remaining heretics are swiftly identified
and corrected by their superiors. As Justice Kagan famously
observed, “We’re all textualists now.” Whether …
Outlaws, Pirates, Judges: Judicial Activism As An Expression Of Antiauthoritarianism In Anglo-American Culture, Beau Steenken
Outlaws, Pirates, Judges: Judicial Activism As An Expression Of Antiauthoritarianism In Anglo-American Culture, Beau Steenken
Law Faculty Scholarly Articles
This article will argue that the rejection of what scholars otherwise
view as controlling legal authority lies at the heart of judicial activism.
Furthermore, it will argue that judicial activism itself channels the
antiauthoritarian current in American culture (and in English culture
predating its importation to America). Part II will examine the extensive
scholarly writings already existing on judicial activism in order to identify
common themes and to explore to what extent scholars have arrived at a
consensus definition of judicial activism. Part III will then show that
judicial activism may better be understood within the context of law as …
The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy
The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy
Law Faculty Scholarly Articles
Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article …
Legal Realism: Unfinished Business, Ramsi A. Woodcock
Legal Realism: Unfinished Business, Ramsi A. Woodcock
Law Faculty Scholarly Articles
No abstract provided.
The Free Exercise Clause, Minority Faiths, And The Possibility Of Religious Independence After Rawlsian Liberalism, David Charles Scott
The Free Exercise Clause, Minority Faiths, And The Possibility Of Religious Independence After Rawlsian Liberalism, David Charles Scott
Theses and Dissertations--Philosophy
The conversation to which my dissertation belongs is that which preoccupied John Rawls in Political Liberalism, namely: (1) how it is possible that a religiously and morally pluralistic culture like ours lives cooperatively from one generation to the next, and (2) The extent to which religious or moral convictions are appropriate bases for political action. My three-essay dissertation is about aspects of this investigation that affect minority or non-mainstream religious and cultural groups, since legal institutions, and theoretical models of them (such as Rawls’s and Ronald Dworkin’s) are in many ways ill-suited to accommodate their ways of life. In the …
Law, Legitimacy, And The Maligned Adverb, James M. Donovan
Law, Legitimacy, And The Maligned Adverb, James M. Donovan
James M. Donovan
The standard rules for good writing dictate that adverbs should be avoided. They undermine the effectiveness of the text and detract from the author’s point. Lawyers have incorporated this general rule, leading them not only to avoid adverbs in their own writings but also to overlook them in the writings of others, including statutes. However, as philosopher Michael Oakeshott has argued, law happens not in the rules but in the adverbs. Through its adverbs the law allows moral space for the citizen to consent to the social order, rather than merely conforming to an imposed command to comply. To become …
Why Law?, James Donovan
Why Law?, James Donovan
Law Faculty Popular Media
According to the 2011 Statistical Abstract, legal services in 2007 reported gross receipts of 267 billion dollars. Students view it as a wise investment to incur debts on average of $100K to go to law school for the chance to assume roles in the legal system.
If we assume people to be minimally rational, such investments are reasonable only if we believe law serves a valuable purpose, one that merits our money and, for many, our lives. Efforts to describe the details of that importance, however, can be exasperatingly vague.
Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman
Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman
Law Faculty Scholarly Articles
Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca
Law Faculty Scholarly Articles
Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …
Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy
Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy
Law Faculty Scholarly Articles
Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …
"Intensional Contexts" And The Rule That Statutes Should Be Interpreted As Consistent With International Law, John M. Rogers
"Intensional Contexts" And The Rule That Statutes Should Be Interpreted As Consistent With International Law, John M. Rogers
Law Faculty Scholarly Articles
Striving for consistency—for consistency, that is, properly understood—must characterize legal reasoning in order for the reasoning to deserve to be called "legal." It may conceivably be "good" or "moral" for identically situated persons to be treated differently by institutions with power, but doing so can hardly be called "legal." Very careful attention must be given, of course, to what is meant by "identically situated," as no two different persons can be 100% identically situated. Their names, for instance, are different. By identical, we must mean no relevant distinction, or no distinction that serves a purpose that we can articulate and …
Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White
Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White
Kentucky Law Journal
No abstract provided.
Corporate Fiduciary Principles For The Post-Contractarian Era, Rutheford B. Campbell Jr.
Corporate Fiduciary Principles For The Post-Contractarian Era, Rutheford B. Campbell Jr.
Law Faculty Scholarly Articles
The impact of the law and economics movement on legal scholarship, legal analysis, and, ultimately, on the rules under which our society operates is substantial. The proponents of this movement ("Contractarians") articulate their positions skillfully and apply their principles broadly across the entire spectrum of our laws, including, of course, the area of corporate law.
The purpose of this Article is to propose, explain, and defend broad and unifying principles to guide the development of fiduciary duties of corporate managers in the post-Contractarian period. These principles are based on Pareto criteria, which are demonstrably appealing to society and provide workable …
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
Law Faculty Scholarly Articles
Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …
Markets Overt, Voidable Titles, And Feckless Agents: Judges And Efficiency In The Antebellum Doctrine Of Good Faith Purchase, Harold R. Weinberg
Markets Overt, Voidable Titles, And Feckless Agents: Judges And Efficiency In The Antebellum Doctrine Of Good Faith Purchase, Harold R. Weinberg
Law Faculty Scholarly Articles
In considering American common law doctrines shaped during the nineteenth century, commentators have advanced differing theories on the primary judicial criteria employed by judges. Recent studies have argued that these doctrines reflect a criterion of economic efficiency. This work has been criticized for its failure to explain why there seems to be a correlation between efficiency and these decision rules or why judges might have preferred efficiency over other decisional criteria. Other studies have proposed that many judicial doctrines announced before the Civil War were intended to facilitate or ratify major shifts in the distribution of social wealth. This article …
The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross
The Theory Of Judicial Reasoning--Toward A Reconstruction, Peter W. Gross
Kentucky Law Journal
No abstract provided.
On Legal Reform: Legal Stability And Legislative Questions, Michael D. Bayles
On Legal Reform: Legal Stability And Legislative Questions, Michael D. Bayles
Kentucky Law Journal
No abstract provided.
Pollution Control, Present And Potential: A Jurisprudential Evaluation Of Cost Allocation As An Alternative, M. G. Woodroof Iii
Pollution Control, Present And Potential: A Jurisprudential Evaluation Of Cost Allocation As An Alternative, M. G. Woodroof Iii
Kentucky Law Journal
No abstract provided.
The Role Of Scienter And The Need To Limit Damages In Rule 10b-5 Actions--The Texas Gulf Sulphur Litigation, J. Kent Dunlap
The Role Of Scienter And The Need To Limit Damages In Rule 10b-5 Actions--The Texas Gulf Sulphur Litigation, J. Kent Dunlap
Kentucky Law Journal
No abstract provided.
The Concept Of "Law", Vilhelm Aubert
Sociology And Sociological Jurisprudence: Admixture Of Lore And Law, Gilbert Geis
Sociology And Sociological Jurisprudence: Admixture Of Lore And Law, Gilbert Geis
Kentucky Law Journal
No abstract provided.
Political Jurisprudence, Martin Shapiro
Civil Disobedience And Natural Law, Mark R. Macguigan
Civil Disobedience And Natural Law, Mark R. Macguigan
Kentucky Law Journal
No abstract provided.
Law As Judgment, Orvill C. Snyder
Construction Of Statutes--"Ejusdem Generis", R. Vincent Goodlett
Construction Of Statutes--"Ejusdem Generis", R. Vincent Goodlett
Kentucky Law Journal
No abstract provided.
Ideas And The Law, Albert J. Harno
Irregularities Of Testamentary Expression, Alvin E. Evans
Irregularities Of Testamentary Expression, Alvin E. Evans
Kentucky Law Journal
No abstract provided.
Is Insolvency Alone Sufficient To Give Equity Jurisdiction?, Kennith A. Howe
Is Insolvency Alone Sufficient To Give Equity Jurisdiction?, Kennith A. Howe
Kentucky Law Journal
No abstract provided.
The Origin Of The Doctrine Of Equitable Conversion By Contract, John L. Davis
The Origin Of The Doctrine Of Equitable Conversion By Contract, John L. Davis
Kentucky Law Journal
No abstract provided.