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Articles 1 - 30 of 70
Full-Text Articles in Law
The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein
The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein
Articles by Maurer Faculty
This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …
Public Policy And The Insurability Of Cyber Risk, Asaf Lubin
Public Policy And The Insurability Of Cyber Risk, Asaf Lubin
Articles by Maurer Faculty
In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …
Federalism And Gender Equality, Susan H. Williams
Federalism And Gender Equality, Susan H. Williams
Articles by Maurer Faculty
Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …
Pringle And The Nature Of Legal Reasoning, Paul Craig
Pringle And The Nature Of Legal Reasoning, Paul Craig
Articles by Maurer Faculty
The Pringle judgment generated significant academic comment, concerning all aspects of the case. It raises, as will be seen, broader issues as to the nature of legal reasoning and the role played therein by text and background purpose or teleology.
Gunnar Beck is very critical of the CJEU, castigating it for reasoning that is said to be absurd, and accusing it of crossing the line between legal reasoning and political judgment. He is also critical of much academic analysis of the case, contending that this was too uncritical of the Court's judgment, and contending also that the interpretation of the …
Proportionality, Rationality And Review, Paul Craig
Proportionality, Rationality And Review, Paul Craig
Articles by Maurer Faculty
There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages …
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle
Articles by Maurer Faculty
Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.
In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …
Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler
Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler
Articles by Maurer Faculty
No abstract provided.
Book Review. Vom Volkerrecht Zum Weltrecht By Angelika Emmerich-Fritsche, Jost Delbruck
Book Review. Vom Volkerrecht Zum Weltrecht By Angelika Emmerich-Fritsche, Jost Delbruck
Articles by Maurer Faculty
No abstract provided.
Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh
Roscoe Pound And The Future Of The Good Government Movement, Charles G. Geyh
Articles by Maurer Faculty
No abstract provided.
Fact, Value And Action In Nonconceptual Jurisprudence, Gene R. Shreve
Fact, Value And Action In Nonconceptual Jurisprudence, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Conflicts Empiricism, Gene R. Shreve
Pushing Evolutionary Analysis Of Law Or Evolving Law: Design Without A Designer, Jeffrey E. Stake
Pushing Evolutionary Analysis Of Law Or Evolving Law: Design Without A Designer, Jeffrey E. Stake
Articles by Maurer Faculty
No abstract provided.
Can Evolutionary Science Contribute To Discussions Of Law?, Jeffrey E. Stake
Can Evolutionary Science Contribute To Discussions Of Law?, Jeffrey E. Stake
Articles by Maurer Faculty
Evolutionary Theory can be helpful in understanding the law and determining what it should be. There are two ways in which the evolutionary perspective differs from an economic perspective on law. Not only does the evolutionary approach shift our attention from the world today to the environment of evolutionary adaptation, it shifts our focus from rational individuals to rational genes and from rational behaviors to rational design of mental architecture. Finally, the law of law's leverage makes predictions about the relative elasticities of demand for all sorts of behaviors, including those that did and did not exist in the environment …
Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve
Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Notes From The Eye Of The Storm, Gene R. Shreve
Notes From The Eye Of The Storm, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Feminist Jurisprudence And Free Speech Theory, Susan H. Williams
Feminist Jurisprudence And Free Speech Theory, Susan H. Williams
Articles by Maurer Faculty
No abstract provided.
Is There A Natural Law Right To Privacy?, Ralph F. Gaebler
Is There A Natural Law Right To Privacy?, Ralph F. Gaebler
Articles by Maurer Faculty
No abstract provided.
The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker
The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker
Articles by Maurer Faculty
No abstract provided.
Comment On Fikentscher's Paper -- Modes Of Thought In Law And Justice -- A Preliminary Report On A Study In Legal Anthropology, Jerome Hall
Articles by Maurer Faculty
No abstract provided.
Book Review. Virtue, Commerce, And History: Essays On Political Thought And History, Chiefly In The Eighteenth Century By J.G.A. Pocock, Stephen A. Conrad
Book Review. Virtue, Commerce, And History: Essays On Political Thought And History, Chiefly In The Eighteenth Century By J.G.A. Pocock, Stephen A. Conrad
Articles by Maurer Faculty
No abstract provided.
The Use Of Evolution Theory In Law, M. B. W. Sinclair
The Use Of Evolution Theory In Law, M. B. W. Sinclair
Articles by Maurer Faculty
No abstract provided.
Legality And Empathy, Lynne N. Henderson
Legality And Empathy, Lynne N. Henderson
Articles by Maurer Faculty
No abstract provided.
Intergenerational Condemnation, Donald H. Gjerdingen
Intergenerational Condemnation, Donald H. Gjerdingen
Articles by Maurer Faculty
Justice between generations is a growing concern in land use, particularly in the areas of environmental and historic preservation. In this Article, Professor Gerdingen addresses the effect of this development on contemporary takings clause doctrine. He argues that conventional takings doctrine is comprised of four different "causes of action" that merely focus on intragenerational conflicts over the use of resources. As a result, part of the reason why the law generates so many hard cases in the area of environmental and historic preservation is that the conventional takings doctrine is unable to accommodate the justice between generations component of preservation …
The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen
The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen
Articles by Maurer Faculty
In this Article, Professor Gjerdingen argues that the current crisis in legal scholarship can be traced to a change in the dominant concept of American law. He argues that virtually all of the significant schools of American legal thought during the last century, from Langdellian orthodoxy to realism to the legal process school, were dominated by a concept of law that separated law and politics. This concept of law, which he terms "conventionalism," presumed that law was an autonomous, apolitical discipline dominated by the study of adjudication and classical common law categories. In contrast, the new legal scholarship of the …
Paul, The Lawyer, On Law, Jerome Hall
Paul, The Lawyer, On Law, Jerome Hall
Articles by Maurer Faculty
No abstract provided.
Statutory Interpretation In America: Dipping Into Legislative History, Part I, Reed Dickerson
Statutory Interpretation In America: Dipping Into Legislative History, Part I, Reed Dickerson
Articles by Maurer Faculty
No abstract provided.
Statutory Interpretation In America: Dipping Into Legislative History, Part Ii, Reed Dickerson
Statutory Interpretation In America: Dipping Into Legislative History, Part Ii, Reed Dickerson
Articles by Maurer Faculty
No abstract provided.
Statutory Interpretation: Dipping Into Legislative History, Reed Dickerson
Statutory Interpretation: Dipping Into Legislative History, Reed Dickerson
Articles by Maurer Faculty
No abstract provided.
Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve
Questioning Intervention Of Right -- Toward A New Methodology Of Decisionmaking, Gene R. Shreve
Articles by Maurer Faculty
No abstract provided.
Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle
Assumption Of Risk In A Comparative Negligence System-- Doctrinal, Practical, And Policy Issues, Daniel O. Conkle
Articles by Maurer Faculty
The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two …