Law Commons^™

Criminal Fault As Per The Lamer Court And The Ghost Of William Mcintyre, Michael J. Bryant

Osgoode Hall Law Journal

Contrary to recent criticisms to the effect that the Supreme Court of Canada favours the rights of criminal defendants and shuns the interests of the community, the Lamer Court has in fact championed the moral requisites of the community in its constitutional jurisprudence on criminal fault. By viewing rights and responsibilities as inextricably linked, the Lamer Court implicitly borrows from natural law traditions espoused by the Dickson Court's most conspicuous dissenter on criminal fault issues-Mr. Justice William McIntyre. This article argues that the tradition or philosophy underlying criminal fault as per the Lamer Court contrasts with the individualist, rights-oriented tendency …

International Environmental Law: Boundaries, Landmarks, And Realities, Lakshman Guruswamy

Publications

No abstract provided.

The Radical Feminist Defense Of Individualism, Cynthia V. Ward

Faculty Publications

No abstract provided.

Metaphors Matter: How Images Of Battle, Sports And Sex Shape The Adversary System, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.

Fee Shifting And Predictability Of Law, Keith N. Hylton

Faculty Scholarship

Lawyers are trained to distinguish between substance and procedure. The substantive law is comprised of standards, such as the Learned Hand formula of negligence, that are used to determine whether a violation of the law has occurred. Procedural rules, on the other hand, determine whether and under what conditions a party can bring suit or be joined in an ongoing suit, the conditions under which a decision may be appealed, the burden of proof, and the allocation of legal expenses.

Overview Of The Role Of Precedent In The Legal System Of The United States, Ana Elena Fierro

LLM Theses and Essays

Traditionally, legal systems have been classified as either Common Law or Civil Law; scholars distinguish these systems based on their origins, as well their attitudes towards stare decisis. Common law considers precedent as a source of binding rules, while civil law does not. However, some scholars consider the methods for legal reasoning to be almost the same in every legal system. These scholars maintain that regardless of the source of law in a particular country, once a judge determines that the facts of one case are similar to those regulated by a certain rule, the judge will apply that particular …

International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe

St. Mary's Law Journal

This Article posits that the increase of tariff arrangements, like the Generalized System of Preferences (GSP), is evidence of the “hardening” of a body of international trade-preference law. It contends that the law of trade preferences is widely practiced in international affairs and the developed nations which terminate all trade preferences for developing countries most likely engage in illegal conduct under international law. Classical international law principally consisted of the law between nations and an international law of trade preferences in any form was unthinkable. Thus, neither international cooperation nor a duty for developed countries to assist developing countries is …

A Settlement Offer Above Policy Limits Does Not Trigger An Insurer's Stowers Duty To Act Reasonably., James Martin Truss

St. Mary's Law Journal

Abstract Forthcoming.

Robert Wilburn Calvert, The Prudentialist In Memoriam., L. Wayne Scott

St. Mary's Law Journal

Abstract Forthcoming.

The Provision Of Maintenance For Women And Children In Zimbabwe, Fareda Banda

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges faced by women and children in Zimbabwe in accessing maintenance and property rights after divorce, despite comprehensive legal provisions. It highlights the dual legal system's impact, the judiciary's discretion in property distribution, and the economic and cultural barriers women face, emphasizing the need for legal reforms and improved enforcement mechanisms.

Consent To Marital Rape: Common Law Oxymoron?, Katherine O'Donovan

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the historical and legal underpinnings of the marital rape exemption in common law, arguing that the concept of consent within marriage has been used to undermine women's autonomy and perpetuate gender inequality. It traces the evolution of this exemption from its roots in Sir Matthew Hale's 17th-century legal writings to its eventual abolition in England and Australia, highlighting the broader implications for women's citizenship and bodily integrity.

Grant Gilmore, Holmes, And The Anxiety Of Influence, Charles M. Yablon

Articles

The article explores Grant Gilmore's ambivalent relationship with Oliver Wendell Holmes, particularly in The Death of Contract. Gilmore both praises Holmes's intellectual brilliance and critiques his formalistic approach to contract law. Drawing on Harold Bloom's The Anxiety of Influence, the analysis suggests that Gilmore engages in a struggle with Holmes's legacy, reflecting a mix of admiration and opposition, akin to how strong poets handle influential predecessors.

For The Love Of Lacan, Jacques Derrida

Cardozo Law Review

What wouldn't Lacan have said!

What won't he have said!

This is not a question, it is an exclamation: to get my voice right, to find the appropriate tone, before beginning to try out this idiomatic conjunction of negation, denial [denegation], conditional and future in the past, my hypothesis being that these grammars, now in succession, now simultaneously, play the role of a screen and of a mirror in the modalities of the with, as they do in the modalities of the since [depuis] that will have determined Lacan's relationship to the philosophers-to certain philosophers. These few reflections on temporal …

The Other Dimension Of Law, Pierre Legendre

Cardozo Law Review

What kind of a questioning would make it possible for psychoanalysis to become theoretically useful for jurists? How could such a questioning have an effect on the practice of law? In the same measure, is it theoretically plausible for psychoanalysts, attached as they are to their own casuistry, to interrogate the law? What must be recognized from the start, if this questioning is to be more than superficial, is that the intellectual and social dogmas of today are obstacles to the liberty of thought [esprit].

Sons Of Writ, Sons Of Wrath: Pierre Legendre’S Critique Of Rational Law-Giving, Anton Schutz

Cardozo Law Review

By nature we have been sons of wrath, according to a thoroughly explored passage of Pauline theology. I should like to put this text to a test. My purpose in this article is to view the work of a twentieth-century Sorbonne Professor of Law through the lens of this Pauline text. Clearly, such a procedure assumes some sort of extraordinary similarity of preoccupation as between these two thinkers. It assumes that the semantic components, filius and ira, and the question of their relationship, are equally crucial to both figures: to the fervent apostle and epistolographer who happened to have …

Anti-Intellectualism, Pierre Schlag

Cardozo Law Review

There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is and saying it, of course, in a way that conforms with the law itself.

Power Without Parents: Juvenile Justice In A Postmodern Society, Jonathan Simon

Cardozo Law Review

It is tempting at times to speak of a general crisis of childhood in America. We hear and read of record numbers of children living in poverty and unprecedented levels of violence against children and adolescents. With astounding frequency, stories emerge of child abuse in the nation's churches, schools, and day-care centers. But this characterization of a general crisis leaps over the specific contexts in which these disturbing images are arising and mistakes the democracy of the daily news for a common fate in America. Such a discussion also risks ignoring the specific technologies of power that are in play, …

Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transcript (Symposium: Nazis In The Courtroom: Lessons From The Conduct Of Lawyers And Judges Under The Laws Of The Third Reich And Vichy, France)., Ruti G. Teitel

Articles & Chapters

No abstract provided.

A Unique And Different Subject Of Law, Alain Pottage

Cardozo Law Review

Might an idiom of love be instituted in law? This question is posed by Luce Irigaray's ethics of sexual difference, which, in the guise of a critique of law, depicts the semantic or symbolic structure of a law that articulates an ethical relation of love-not love as caritatis, but love as eros. This implausible association of love and law seeks to institute an immediate and idiomatic relation within the axiopoietic order of law. Irigaray's J'aime d toi prescribes a set of basic rights which law-in its role as cultural tutor-might institute as the coordinates of a new model …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

Anti-Intellectualism, Pierre Schlag

Publications

No abstract provided.

This Is Not A Sentence, Paul F. Campos

Publications

No abstract provided.

Making Sense Of Metaphors: Visuality, Aurality, And The Reconfiguration Of American Legal Discourse, Bernard J. Hibbitts

Cardozo Law Review

While American legal discourse has embraced a range of figurative expressions evoking all sorts of sensory experience, it has long favored visual metaphors. We frequently consider law as a matter of looking: we "observe" it; we evaluate claims "in the eye of the law"; our high courts "review" the decisions of inferior tribunals. Alternatively, we speak of law as something one would usually look at: it is a "body," a "text," a "structure," a "bulwark of freedom," a "seamless web,'' and even a "magic mirror." We identify particular legal concepts with striking visual images: property rights are a "bundle of …

Judicial Review Of Discretionary Immigration Decisionmaking, Michael G. Heyman

San Diego Law Review

The Immigration and Nationality Act vests enormous discretion in the Attorney General and subordinates, such discretion exercised frequently at all levels of the immigration system. Despite this, though, judicial review of these decisions has followed a very uneven, troubled course. This Article explores the reasons for this, focusing first on the Administrative Procedure Act and the elusive meaning of discretion itself. The author demonstrates the "disintegration" of administrative law and what he sees as the failure of its general precepts to accommodate immigration issues. The Article traces the development of faulty doctrine through case law, resulting in a stunted judicial …

Virgin Territory: Margaret Radin's Imagery Of Personal Property As The Inviolate Feminine Body, Jeanne L. Schroeder

Articles

Margaret Jane Radin's theory of property for personhood posits that certain personal property is deeply intertwined with individual identity, necessitating legal protections that go beyond traditional property rights. While her approach offers a feminist perspective by emphasizing the body and body-like objects as extensions of selfhood, critics argue that her framework lacks an account of community and intersubjectivity, rendering it incomplete. The article suggests that integrating insights from Hegel and Lacan could provide a more comprehensive understanding of property relations, addressing both personal and communal dimensions.

Taking A Look At The Modem Takings Clause Jurisprudence: Finding Private Property Protection Under The Federal And Utah Constitutions, David W. Tufts

BYU Law Review

No abstract provided.

On War And Justice, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Hearing Women Not Being Heard: On Carol Gilligan's Getting Civilized And The Complexity Of Voice, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.