Law Commons^™

The Supreme Court Of Israel: Formative Years, 1948-1955, Pnina Lahav

Faculty Scholarship

This article looks at the institutional and jurisprudential development of the Israeli Supreme Court in its early stages.

Legal Pragmatism In The People's Republic Of China, Xingzhong Yu

Cornell Law Faculty Publications

No abstract provided.

The New Economic Theory Of The Firm: Critical Perspectives From History, William W. Bratton

All Faculty Scholarship

No abstract provided.

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Why Is There Taylor V. Caldwell - Thre Propositions About Impracticability, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

Living Without Rights-- In Manners, Religion, And Law, Richard Stith

Law Faculty Publications

No abstract provided.

Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan

Articles

Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …

Listening To Tribal Legends: An Essay On Law And The Scientific Method, Nancy Levit

Faculty Works

Much of jurisprudence is storytelling, recounting tales of what has gone before; improvising and crafting new stories of legal theory from old ones. Useful kernels are passed from one generation of legal thinkers to the next. Like tribal legends, the messages in many stories of jurisprudence can be understood only by a select audience. Legends often come with morals; theories of jurisprudence often impart prescription for living within the law. Jurisprudence, like legends, concerns fundamental issues, confronts cosmic questions and weaves in magic. Sometimes both possess humor as well.

Unfortunately, some modern versions of jurisprudential theories have become anecdotal. The …

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby

Articles

No abstract provided.

The Movement To Assimilate The American Indians: Jurisprudential Study, John W. Ragsdale Jr

Faculty Works

In 1934, the United States made a revolutionary shift in Indian policy. Laws were passed that ended most assimilation measures and began, instead, a preservation and promotion of tribalism. Why did this happen? What changes in American thought, politics and economy could precipitate such a reversal? Felix Cohen, a former special assistant to the Attorney General, and known as the "Blackstone of American Indian Law," noted: "Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the …

Abortion, Incommensurability, And Jurisprudence, Joan C. Williams

Faculty Scholarship

No abstract provided.

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …

Roscoe Pound And American Sociology: A Study In Archival Frame Analysis, Sociobiography And Sociological Jurisprudence, Michael R. Hill

Department of Sociology: Dissertations, Theses, and Student Research

Roscoe Pound (1870-1964) was a noted botanist, jurist, and sociologist who founded the American school of sociological jurisprudence. Pound's sociological ideas originated at the University of Nebraska. Pound developed numerous ties to other sociologists, joined the American Sociological Society, and published in the American Journal of Sociology. Pound's modern erasure from sociological chronicles is attributed in part to hegemonic processes. The collection of archival data for this study in the history of sociology is generalized (by extending Erving Goffman's metatheory of meaning) as "archival frame analysis." Pound's intellectual milieu is analyzed using Mary Jo Deegan's theory of "core codes" …

Risk-Utility Analysis And The Learned Hand Formula: A Hand That Helps Or A Hand That Hides?, Barbara Ann White

All Faculty Scholarship

Judicial inconsistencies in balancing costs against benefits in legal determinations, sometimes referred to as the Learned Hand Formula, indicate that the implications are not fully understood. The incorporation of more formal economic cost-benefit analysis by some courts has only served to increase the confusion and wariness about fostering such guidelines for social behavior.

This article's purpose is threefold. One is to demonstrate how the use of cost-benefit analysis necessarily imparts the moral and/or political values of the user into his or her decisions. While the cost-benefit technique is itself value-neutral, its application, as will be shown, requires that some moral …

A Critical Legal Studies Perspective On Contract Law And Practice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The critical legal studies movement is often viewed as highly theoretical, characterized by impenetrable scholarship that makes frequent reference to the work of"famous dead Europeans." Indeed, the theoretical detachment of critical legal studies from real-world concerns has led some to speculate that the methodologies of the movement are so abstract and stylized that they could be used to deny the validity of distinctions that we commonly rely upon in everyday life-even something as basic as the distinction between up and down. Given the level of abstraction at which most critical legal studies analysis occurs, one might wonder why a critical …

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman

All Faculty Scholarship

No abstract provided.

Contradiction And Denial, Pierre Schlag

Publications

No abstract provided.

Bracton, The Year Books, And The 'Transformation Of Elementary Legal Ideas' In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …

Hold The Corks: A Comment On Paul Carrington's "Substance" And "Procedure" In The Rules Enabling Act, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Natural Law And Justice (Book Review), Robert E. Rodes

Journal Articles

Professor Weinreb's aim in this thoughtful and thought-provoking book is a drastic overhaul of the ongoing debate about natural law. Natural law as he sees it is not a mere theory about the relation of law and morality: it is a comprehensive theory about the place of human beings in the cosmos. As such, it has a profound bearing on legal questions, but not in the way its current proponents have in mind. By recasting the fundamental question of natural law, Weinreb sheds light on many subsidiary questions of legal theory. This is a difficult book, because it is closely …

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …

The "Nexus Of Contracts" Corporation: A Critical Appraisal, William W. Bratton

All Faculty Scholarship

No abstract provided.

Corporate Debt Relationships: Legal Theory In A Time Of Restructuring, William W. Bratton

All Faculty Scholarship

No abstract provided.

Contract Scholarship And The Reemergence Of Legal Philosophy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

It has been thirty years since Arthur Corbin's eight-volume treatise on contracts appeared in condensed form as a one-volume edition. No scholarly book on contract law of comparable scope has been published since. This void in contract law scholarship has been filled only by the occasional law review article, by books discussing particular aspects of contract law, and by the ongoing revisions of the Restatement of Contracts that culminated in the publication of the Restatement (Second) of Contracts in 1979.

The dominant legal climate has not been friendly to any form of literature that attempts to explicate legal doctrine systematically, …

Integrating Thoughtways: Re-Opening Of The Environmental Mind?, Lakshman Guruswamy

Publications

The implementation of environmental law and policy has assumed that pollution could be contained, corralled and interdicted within the medium (air, land, or water) in which unpleasant effects are encountered. Sweeping, but piecemeal, federal legislation in the 1970s aspired to create healthy air, together with fishable, swimmable and drinkable waters. Despite impressive gains, these goals have not been achieved. There have been painful failures, compounded by the mounting costs of environmental protection. While the need for environmental protection is generally accepted, the effectiveness and efficiency of regulation based on the legislation of the 1970s has been questioned in the 1980s. …

The Problem Of Transaction Costs, Pierre Schlag

Publications

No abstract provided.

Missing Pieces: A Cognitive Approach To Law, Pierre Schlag

Publications

No abstract provided.

Second-Order Reasons, Uncertainty And Legal Theory, Stephen R. Perry

All Faculty Scholarship

No abstract provided.