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Articles 1711 - 1740 of 3880
Full-Text Articles in Law
Nine Takes On Indeterminacy, With Special Emphasis On The Criminal Law, Leo Katz
Nine Takes On Indeterminacy, With Special Emphasis On The Criminal Law, Leo Katz
All Faculty Scholarship
The claim that legal disputes have no determinate answer is an old one. The worry is one that assails every first‐year law student at some point. Having learned to argue both sides of every case, the feeling seems inevitable.
But to assess the “skeptical thesis,” which is what I will hereafter call this claim, in its strongest version, we will do well to look at a particularly vigorous presentation of it, which, in the case of criminal law, is to be found in Mark Kelman's justly famous Interpretive Constructs in the Criminal Law. What caught people's imagination about Kelman's …
A Standard Of Global Justice, Steven R. Ratner
A Standard Of Global Justice, Steven R. Ratner
Book Chapters
This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield
Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield
Articles
It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …
Jack Sammons As Therapist, Jospeh Vining
Jack Sammons As Therapist, Jospeh Vining
Articles
Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.
Constructing Autonomy, Bailey Kuklin
Intention And Value, Joseph Raz
Intention And Value, Joseph Raz
Faculty Scholarship
The paper sketches the role of reasons and intentions in leading to action with an intention, explaining the way possession of rational powers transforms the formation of intentions. Part One explains how when humans act with an intention they act in the belief that there is value in the action. Part Two explains the relative role of value and intention in “producing” the action, and relates their role to that of motivation.
Irb Licensing, Philip A. Hamburger
Irb Licensing, Philip A. Hamburger
Faculty Scholarship
This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …
Citizenship Management: On The Politics Of Being Included-Out, John Erni
Citizenship Management: On The Politics Of Being Included-Out, John Erni
John Nguyet Erni
Many in Hong Kong have identified the city as “half-sovereign” or “conditionally sovereign,” as postcoloniality has brought about new ruptures and shifting boundaries of citizenship in economic, cultural, and legal terms. The work of deciphering questions of belonging is still ongoing, and has in fact intensified in recent times. Increasingly, who qualifies as a citizen and where their sense of home is have become vital questions for two visible groups: the Chinese Mainlanders whose personal and cultural fortunes have been transformed by opportunities presented by the permeability of the city-border, and the foreign domestic helpers whose right of belonging has …
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Believe It Or Not: Mitigating The Negative Effects Personal Belief And Bias Have On The Criminal Justice System, Sarah Mourer
Sarah Mourer
This article examines the prosecutor’s and defense attorney’s personal pre-trial beliefs regarding the accused’s guilt or innocence. This analysis suggests that when an attorney does hold pretrial beliefs, such beliefs lead to avoidable bias and errors. These biases may alter the findings throughout all stages of the case. The procedure asking that the prosecution seek justice while having nothing more than probable cause results in the prosecutor’s need to have a belief in guilt before proceeding to trial. While this belief is intended to foster integrity and fairness in the criminal justice system, to the contrary, it actually contributes to …
Conceptual Utility Of Malum Prohibitum.Pdf, Stuart Green
Conceptual Utility Of Malum Prohibitum.Pdf, Stuart Green
Stuart Green
Privacy And Organizational Persons, Eric W. Orts, Amy Sepinwall
Privacy And Organizational Persons, Eric W. Orts, Amy Sepinwall
Amy J. Sepinwall
This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread more carefully and that it may often be sensible and recommended to allow corporations and other organizations to assert some constitutional “rights of privacy.” More specifically, the Article suggests that organizations may enjoy “primary” rights, which reside with the organizations in the first instance or “secondary” rights, which are asserted by an organization to …
Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall
Conscience And Complicity: Assessing Pleas For Religious Exemptions After Hobby Lobby, Amy Sepinwall
Amy J. Sepinwall
In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives, or …
Opportunism As Crucible: Rethinking Equity In View Of Reliance Interests And Legal Evolution, John Ehrett
Opportunism As Crucible: Rethinking Equity In View Of Reliance Interests And Legal Evolution, John Ehrett
John Ehrett
This Article offers and defends a nuanced definition of opportunism in the context of legal decision-making by differentiating between opportunism in the broad sense and the particularized phenomenon of cognizably malignant opportunism. It subsequently proceeds by developing a normative critique of the case for broader invocation of counter opportunistic equitable remedies, alongside a defense of the reliance and gap-filling functions performed by opportunistic actors. Centrally, I challenge the suggestion that the existence of opportunism in private law warrants a revival of the doctrines of ex post equity. I argue instead that opportunism serves an important structural purpose where the evolution …
An Essay On Christian Constitutionalism: Building In The Divine Style, For The Common Good(S), Patrick Mckinley Brennan
An Essay On Christian Constitutionalism: Building In The Divine Style, For The Common Good(S), Patrick Mckinley Brennan
Patrick McKinley Brennan
Theocracy is a matter of growing global concern and therefore of renewed academic interest. This paper answers the following question: "What would a Christian constitution, in a predominantly Christian nation, look like?" The paper was prepared for presentation as the Clark Lecture at Rutgers School of Law (Camden), where papers answering the same question with respect to Jewish and Islamic constitutions and cultures, respectively, were also presented. A Christian constitution would not have as its aim the comparatively anodyne -- and ultimately futile -- business of introducing more "Judeo-Christian values" into the life of the typical nation state. The paper …
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Donald J. Kochan
The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin
The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin
Bryan H. Druzin
Virtue Ethics, Rule Of Law, And Self-Restriction, Stephen C. Angle
Virtue Ethics, Rule Of Law, And Self-Restriction, Stephen C. Angle
Stephen C. Angle
Pragmatism On The Shoulders Of Emerson: Oliver Wendell Holmes Jr.'S Jurisprudence As A Synthesis Of Emerson, Peirce, James, And Dewey, Allen P. Mendenhall
Pragmatism On The Shoulders Of Emerson: Oliver Wendell Holmes Jr.'S Jurisprudence As A Synthesis Of Emerson, Peirce, James, And Dewey, Allen P. Mendenhall
Allen Mendenhall
Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories …
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan
Donald J. Kochan
Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …
Keepings, Donald J. Kochan
Keepings, Donald J. Kochan
Donald J. Kochan
Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan
Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan
Donald J. Kochan
The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo
The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo
Paulo Barrozo
This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of …
Confrontational Contestation And Democratic Compromise: The Sunflower Movement And Its Aftermath, Brian Christopher Jones, Yen-Tu Su
Confrontational Contestation And Democratic Compromise: The Sunflower Movement And Its Aftermath, Brian Christopher Jones, Yen-Tu Su
Brian Christopher Jones
This piece describes the two conflicting governmental visions involved in the events surrounding the Taiwan Sunflower Movement, and attempts to justify the Movement from the perspective of democratic theory. In doing so we analyse the justifications Sunflower Movement leaders put forward for their occupation, and present a novel theory of “confrontational contestation”. The theory stems from the belief that the Sunflower Movement events represented a unique type of democratic disobedience, and new understandings regarding disobedience have emerged from these circumstances. The second part of our paper analyses the cases for and against prosecuting Sunflower Movement members. Ultimately, we decide that …
Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson
Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson
Cultural Encounters, Conflicts, and Resolutions
Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.
This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …
December 30, 2014: The Radical Religious Message Of A Charlie Brown Christmas, Bruce Ledewitz
December 30, 2014: The Radical Religious Message Of A Charlie Brown Christmas, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Radical Religious Message of A Charlie Brown Christmas“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 27, 2014: Religion As Tool, Not Identity, Bruce Ledewitz
December 27, 2014: Religion As Tool, Not Identity, Bruce Ledewitz
Hallowed Secularism
Blog post, “Religion as Tool, Not Identity“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 24, 2014: Christmas Mourning, 2014, Bruce Ledewitz
December 24, 2014: Christmas Mourning, 2014, Bruce Ledewitz
Hallowed Secularism
Blog post, “Christmas Mourning, 2014“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 21, 2014: Questioning Capitalism, Bruce Ledewitz
December 21, 2014: Questioning Capitalism, Bruce Ledewitz
Hallowed Secularism
Blog post, “Questioning Capitalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 18, 2014: Good News On Cuba, Bruce Ledewitz
December 18, 2014: Good News On Cuba, Bruce Ledewitz
Hallowed Secularism
Blog post, “Good News on Cuba“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
December 14, 2014: The Tough Guys Who Favor Torture, Bruce Ledewitz
December 14, 2014: The Tough Guys Who Favor Torture, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Tough Guys Who Favor Torture“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.