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Articles 31 - 45 of 45
Full-Text Articles in Law
Is Equality A Totally Empty Idea?, Anthony D'Amato
Is Equality A Totally Empty Idea?, Anthony D'Amato
Faculty Working Papers
Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
Faculty Working Papers
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …
The Death Of The American Trial, Robert P. Burns
The Death Of The American Trial, Robert P. Burns
Faculty Working Papers
This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich
Faculty Working Papers
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …
Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato
Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato
Faculty Working Papers
Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.
Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler
Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler
Faculty Working Papers
In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …
A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato
A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato
Faculty Working Papers
Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander
Faculty Working Papers
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …
The Moral Dilemma Of Positivism, Anthony D'Amato
The Moral Dilemma Of Positivism, Anthony D'Amato
Faculty Working Papers
I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …
Whither Jurisprudence?, Anthony D'Amato
Whither Jurisprudence?, Anthony D'Amato
Faculty Working Papers
After considering the side road of critical legal studies, I shall try to indicate the major signposts to a more complete jurisprudence. These signposts take the form of questions or anomalies in our present understanding of law. I will conclude that only by following these signposts, by exploring these questions and anomalies, will we begin to uncover the nature of law and justice.
What 'Counts' As Law?, Anthony D'Amato
What 'Counts' As Law?, Anthony D'Amato
Faculty Working Papers
A reader of jurisprudence might conclude that only philosophers raise the question whether international law may be said to exist or is really law. But in terms of frequency, the question is probably raised more often by governments and states that are not trying to be philosophical. The increasing attention being paid to the need for, and the procedures for, objective validation of rules of international law in a burgeoning literature of international law evidences the seriousness of the problem, the responsibility of scholars for careful scholarship in this area of legal theory, and ultimately the good possibility of generally …
Lon Fuller And Substantive Natural Law, Anthony D'Amato
Lon Fuller And Substantive Natural Law, Anthony D'Amato
Faculty Working Papers
I will contend that Fuller's secular or "procedural" natural law, as described by Moffat, does not cover the theoretical position that could be occupied by a substantive natural lawyer, that such a theoretical position is viable today, and that there are some key elements in Fuller's theory that actually conflict with substantive natural law and might therefore be criticized from that perspective.
Disqualification Of Counsel: The Westinghouse Litigation, Anthony D'Amato
Disqualification Of Counsel: The Westinghouse Litigation, Anthony D'Amato
Faculty Working Papers
The motion to disqualify counsel is becoming increasingly important in pre-trial strategy. Discusses one case arising out of Westinghouse Electric Corporation's alleged breach of longterm uranium supply contracts, in which a disqualification motion was sustained against Westinghouse's counsel, Kirkland & Ellis.
Can/Should Computers Replace Judges?, Anthony D'Amato
Can/Should Computers Replace Judges?, Anthony D'Amato
Faculty Working Papers
Speculates concerning judicial decision-making to test, at least theoretically, what some of the implications of jurisprudential advances might be. Proposes as the means of making this test a consideration of whether a computer may be so programmed as to replace the judicial function of judges.
The Neo-Positivist Concept Of International Law, Anthony D'Amato
The Neo-Positivist Concept Of International Law, Anthony D'Amato
Faculty Working Papers
The question "Is international law really law?" has not proved troublesome, according to Hart, because "a trivial question about the meaning of words has been mistaken for a serious question about the nature of things." Hart defends international law in Bentham's terms as "sufficiently analogous" to municipal law. It is important to see in what way this analogy is viewed by Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.