Law Commons^™

Policing A Negotiated World: A Partial Test Of Klinger’S Ecological Theory Of Policing, Christopher Salvatore, Travis A. Taniguchi

Christopher Salvatore

The primary goal of the current study is to examine a portion of Klinger’s theory. Specifically, we test the influence of organizational and environmental contextual factors, guided by Klinger’s theory, on one measure of officer vigor. To date, few studies have taken this approach to examine Klinger’s theory. The study builds on prior research that has tested aspects of Klinger’s theory and adds new analytic strategies that prior studies have not used. The results of this study have implications for both theory and practice, and they add to the growing literature examining the influence of ecological and organization factors on …

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.

The Semantics And Pragmatics Of Legal Statements, Michael S. Green

Michael S. Green

No abstract provided.

The New Eliminativism, Michael S. Green

Michael S. Green

No abstract provided.

Prediction Theories Of Law And The Internal Point Of View, Michael S. Green

Michael S. Green

No abstract provided.

On Hart's Category Mistake, Michael S. Green

Michael S. Green

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s criticism of Hart, as it stands, is …

The Real Legal Realism, Michael S. Green

Michael S. Green

No abstract provided.

International Law And Dworkin's Legal Monism, Michael S. Green

Michael S. Green

No abstract provided.

Felix Cohen On Legislation, Michael S. Green

Michael S. Green

Felix Cohen's and Walter Wheeler Cook's prediction theory of law was a fundamentally positivist theory, according to which the law of a jurisdiction is reducible to regularities of official behavior. Cohen used the prediction theory to argue for philosophical anarchism - that is, the view that the existence of law does not entail a duty, even a prima facie duty, of obedience. In particular, Cohen extended philosophical anarchism to adjudication. The fact that officials in a jurisdiction regularly behave in a certain way does not give a judge adjudicating a case a moral reason to do the same. In deciding …

Dworkin V. The Philosophers: A Review Essay On Justice In Robes, Michael S. Green

Michael S. Green

In this review essay, Professor Michael Steven Green argues that Dworkin's reputation among his fellow philosophers has needlessly suffered because of his refusal to back down from his "semantic sting" argument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting argument in no way undermines Dworkin's other arguments against Hart.

Copyrighting Facts, Michael S. Green

Michael S. Green

No abstract provided.

Public Reason As A Public Good, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

In The Wake Of Thoreau: Four Morden Legal Philosophers And The Theory Of Nonviolent Civil Disobedience, Stephen R. Alton

Stephen Alton

This Article opens with a discussion of Thoreau's philosophy of civil disobedience and then examines the ideas of four modem legal philosophers, Joseph Raz, Kent Greenawalt, John Rawls, and Ronald Dworkin, on the subject. Next, the Article compares the respective thinking of all five men regarding the circumstances that would justify the use of civil disobedience. To facilitate the comparison as well as to make it more relevant to the reader, the Article examines five related contemporary illustrations involving situations in which the use of civil disobedience might arguably be morally justified. This Article concludes with some general thoughts on …

On Hostility And Hospitality: Othering Pierre Legrand, Russell A. Miller

Russell A. Miller

Pierre Legrand's return to the pages of the American Journal of Comparative Law after nearly twenty years is cause for reflection on the reasons for this prolific comparatist's absence from one of the discipline's leading scholarly fora. One reason is the widespread disdain aimed at Legrand as a result of his persistent, sharply critical, and often pointedly personal crusade against the discipline's accepted approaches and their most prominent practitioners. This is partly the nature of the article he publishes in this collection, which features a no-holds-bared, uncomplimentary assessment of the work of James Gordley. In this Article I argue that …

Could A Robot Be District Attorney?, Stephen E. Henderson

Stephen E Henderson

No abstract provided.

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

If Separation Of Church And State Doesn’T Demand Separating Religion From Politics, Does Christian Doctrine Require It?, Samuel W. Calhoun

Samuel W. Calhoun

This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion From Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the appropriateness of religious arguments in the public square. Part III evaluates Wayne Barnes’s contention that Christian doctrine requires separating religion from politics.

Should Robots Prosecute And Defend?, Stephen E. Henderson

Stephen E Henderson

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Fatma Marouf

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Weird Science: The Empircial Study Of Legal Writing/Describing Law’S Enterprise: Moving From Theory To Research Question To Research Design And Implementation, Brian Larson

Brian Larson

How We Built A Scholarly Working Group Devoted To Classical Legal Rhetoric (And How You Can Do The Same Thing With Other Legal Writing Subjects), Brian Larson, Kirsten K. Davis, Lori D. Johnson, Ted Becker, Susan E. Provenzano

Brian Larson

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Randy D. Gordon

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

Defeasibility And Pragmatic Indeterminacy In Law, Andrei Marmor

Andrei Marmor

In one standard sense, defeasibility is a feature of inferences, and one that seems to defy classical first order logic: An inference is defeasible when its putative conclusion is rendered doubtful by the addition of premises (thus violating monotonicity). The main argument of this paper is that certain types of inferences are defeasible in ways that render the putative conclusion genuinely indeterminate. The discussion, and most of the examples, focus on pragmatic inferences, legal inferences and on some overlapping cases, that is, cases in which legal defeasibility is actually a matter of pragmatics. I also argue that legal presumptions and …

The "Common Word," Development, And Human Rights: African And Catholic Perspectives, Joseph M. Isanga

Joseph Isanga

Africa is the most conflict-ridden region of the world and has been since the end of the Cold War. The Continent's performance in both development and human rights continues to lag behind other regions in the world. Such condi­tions can cause religious differences to escalate into conflict, particularly where religious polarity is susceptible to being exploited. The sheer scale of such con­flicts underscores the urgency and significance of interreligious engagement and dialogue: 'Quantitative and qualitative analysis based on a ... database including 28 violent conflicts show that religion plays a role more frequently than is usually assumed.' This ambivalent character …

Kadhi's Courts And Kenya's Constitution: An International Human Rights Perspective, Joseph M. Isanga

Joseph Isanga

This article examines Kenya's international human rights obligations and finds that there is support for religious courts, provided relevant human rights guarantees are ensured. Kenya's Kadhi's courts have existed in the constitution since independence from the British. So why do some religious groups now oppose them or their enhancement under Kenya's Constitution? Opponents of Kadhi's courts advance, inter aha, the following arguments. First, Kadhi's courts provisions favour one religion and divide Kenyans along religious lines. Second, they introduce Sharia law. Third, the historical reasons for their existence have been overtaken by events. Fourth, non-Muslims shouldn't be taxed to fund a …

The Future Of Federal Law Clerk Hiring, Aaron L. Nielson

Aaron L. Nielson

The market for federal law clerks has been upended. Beginning in 2003, the Federal Judges Law Clerk Hiring Plan was implemented to regulate clerkship hiring. According to the Plan, a judge could not interview or hire a potential law clerk before the beginning of the applicant’s third year of law school. The Plan, however, never worked well, constantly got worse, and has now officially collapsed. Across the country, clerkship hiring once again regularly occurs during the second year of law school. This Article addresses the rise and inevitable fall of the Plan. In particular, it submits that the Plan never …

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

Stephen E Henderson