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Full-Text Articles in Law

Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban Jan 1990

Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban

Cleveland State Law Review

My comments in this paper are directed to just one argument, or rather one cluster of arguments, deployed by John Finnis in just three pages of Natural Law and Legal Reasoning. I am referring to Finnis's argument that the goods and bad at stake in legal, moral and political choice are incommensurable, and to the conclusions he draws from this argument. I will argue that while the incommensurability thesis is true, that is so for reasons somewhat different than those Finnis advances (section I); that in its most common form the incommensurability thesis does not in all cases imply the …

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Allocating Risks And Suffering: Some Hidden Traps, John Finnis Jan 1990

Allocating Risks And Suffering: Some Hidden Traps, John Finnis

Cleveland State Law Review

The economic analysis of which Adam Smith is a principal founder is helpful in practical reasoning about problems of justice precisely insofar as it systematically calls attention to the side-effects of individual choices and actions and behavior. Still, it would be a mistake to conclude that we need only a more adequate account of the benefits and burdens up for distribution or allocation by those responsible for the common good or general fate. We need also to bear in mind what Smith did not forget and what economics does not comprehend, the requirements of commutative justice. To see this, we …

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The Rule Of Law And The Rule Of Laws, David F. Forte Jan 1990

The Rule Of Law And The Rule Of Laws, David F. Forte

Cleveland State Law Review

The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller, but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of laws, or the term …

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The Value Of Life, Lewis A. Kornhauser Jan 1990

The Value Of Life, Lewis A. Kornhauser

Cleveland State Law Review

This comment asks, in the context of cost-benefit analysis, what consistency requires. How much variation, if any, in valuation of life is justifiable? Inevitably, questions concerning the moral foundations of economic valuations of life will arise. Section 1 presents some evidence of variation among agency and academic valuations of life. It also outlines three different approaches to evaluation of health and safety projects. The variation detailed at the outset of section 1 is among aggregate, preference-based values of life. The subsequent discussion argues for the following claims. First, the most justifiable, "economic" approach to the evaluation of health and safety …

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Concluding Reflections, John Finnis Jan 1990

Concluding Reflections, John Finnis

Cleveland State Law Review

A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.

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The Virtues Of Redundancy In Legal Thought, Randy E. Barnett Jan 1990

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Cleveland State Law Review

Redundancy has a bad reputation among legal intellectuals. My interest in the virtues of redundancy grows out of my interest in the social function of the liberal conception of justice and the rule of law. In this essay, I propose that legal theorists pay serious attention to the concept of redundancy used by engineers. I explain how redundancy-in this special sense-is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. I will describe the virtues of redundancy in legal thought. I want to explain why it is useful to rely on …

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Whose Nature - Practical Reason And Patriarchy, Lynne Henderson Jan 1990

Whose Nature - Practical Reason And Patriarchy, Lynne Henderson

Cleveland State Law Review

My comments on John Finnis's Natural Law and Legal Reasoning grow out my concern about the relationship of law to authoritarianism. In this comment, I do not intend to go deeply into the relationship of law to authoritarianism but rather to sketch out the background of the argument. It seems to me that authoritarianism, properly understood, is of great relevance to a symposium on jurisprudence and legal reasoning, because at a minimum, authoritarianism overlaps with legality's ethic of rule-following and obedience to authority. Authoritarian attitudes about authority and morality also are relevant to the jurisprudential concern with the relation of …

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The Work Of The Court Of Appeals: A Statistical Miscellany July 1, 1988 Through June 30, 1989 Jan 1990

The Work Of The Court Of Appeals: A Statistical Miscellany July 1, 1988 Through June 30, 1989

Maryland Law Review

No abstract provided.

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Natural Law And Legal Reasoning Natural Law, John Finnis Jan 1990

Natural Law And Legal Reasoning Natural Law, John Finnis

Cleveland State Law Review

In sum: Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless …

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Promulgating The Marriage Contract, Lynn A. Baker Jan 1990

Promulgating The Marriage Contract, Lynn A. Baker

University of Michigan Journal of Law Reform

I begin Part I of this Article by positing several logically necessary, but insufficient, conditions that precede a state's decision to promulgate a law more aggressively than usual. I then show that each of these conditions was met with regard to the economic terms of the marriage contract in virtually all states by 1975. In Part II, I explore what Louisiana's unusually aggressive promulgation of certain terms of the marriage contract reveals about the legal system's conception of the marital relationship as of 1975. In Part III, I discuss what is added to that conception of the modern marital relationship …

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Foreword: Nonjudicial Statutory Interpretation, William D. Popkin Jan 1990

Foreword: Nonjudicial Statutory Interpretation, William D. Popkin

Articles by Maurer Faculty

In the past decade the study of statutory interpretation has gone from benign neglect to intense scrutiny, but the emphasis has remained on interpretation by courts. This symposium takes a different approach. The major theme is that interpretation depends on the interpreter and that we can gain insight into statutory interpretation, even by courts, from analyzing the strengths and weaknesses of nonjudicial interpreters. Part I of this Foreword places the symposium in the broader setting of recent literature on statutory interpretation, briefly reviewing the major schools of thought and explaining the contributors' perspectives. Part II sets forth my own views …

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Book Review. From Medieval Group Litigation To The Modern Class Action By Stephen C. Yeazell, Richard M. Fraher Jan 1990

Book Review. From Medieval Group Litigation To The Modern Class Action By Stephen C. Yeazell, Richard M. Fraher

Articles by Maurer Faculty

No abstract provided.

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Natural Law And Legal Reasoning, John M. Finnis Jan 1990

Natural Law And Legal Reasoning, John M. Finnis

Journal Articles

Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless questions which …

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Concluding Reflections, John M. Finnis Jan 1990

Concluding Reflections, John M. Finnis

Journal Articles

A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.

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Author, User, Scholar, Thief: Fair Use And Unpublished Works, Diane Conley Jan 1990

Author, User, Scholar, Thief: Fair Use And Unpublished Works, Diane Conley

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Separation Of Powers Under The Texas Constitution, Harold H. Bruff Jan 1990

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

Publications

No abstract provided.

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Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii Jan 1990

Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii

Faculty Journal Articles and Book Chapters

No abstract provided.

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The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson Jan 1990

The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson

Scholarly Works

This Article looks at aspects of a particular societal problem as it was approached at different historical periods in Roman, French, and American property law. The main point of the Article is to clarify understanding of the American course of development through an awareness of how the problem was dealt with elsewhere. This awareness will cast doubt on the simplicity of the American course of development as explained in a distinguished book, and on the relationship of the legal development to economic change. In THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, Morton J. Horwitz seeks "to show that one of the …

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Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 1990, Volume 2, Kentucky. General Assembly. House Of Representatives. Jan 1990

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 1990, Volume 2, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

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Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 1990, Volume 3, Kentucky. General Assembly. House Of Representatives. Jan 1990

Journal Of The House Of Representatives Of The Commonwealth Of Kentucky, 1990, Volume 3, Kentucky. General Assembly. House Of Representatives.

Journals of the General Assembly of the Commonwealth of Kentucky

No abstract provided.

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A European Peace Order And The German Question: Legal And Political Aspects, Jost Delbrueck Jan 1990

A European Peace Order And The German Question: Legal And Political Aspects, Jost Delbrueck

Michigan Journal of International Law

The post-World War II political setting in Europe was marked by the stable posture of two tightly structured opposing bloc-systems. In military terms, the Warsaw Pact and the North Atlantic Treaty Organization, and in the economic sphere, the Eastern European Council for Mutual Economic Cooperation and the Western European Economic Communities, represented the stark distinctions of the Cold War. This stable posture has definitely come to an end. Due to the rapid decline of the Communist regimes in Eastern Europe, there is a growing concern in various political quarters about an emerging political instability in Eastern and Central Europe brought …

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Commissions Of Inquiry And Public Policy In Canada, Frank Iacobucci Jan 1990

Commissions Of Inquiry And Public Policy In Canada, Frank Iacobucci

Dalhousie Law Journal

Most Canadians attach a great deal of importance to commissions of inquiry. When commissions of inquiry are appointed and when they report, great public attention is usually focussed on the substantive and serious issues discussed.

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John Adams's Thoughts On Government, 1776, Richard B. Bernstein Jan 1990

John Adams's Thoughts On Government, 1776, Richard B. Bernstein

Articles & Chapters

No abstract provided.

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Book Review. Inventing The Industrial Revolution: The English Patent System, 1660-1800, Marshall A. Leaffer Jan 1990

Book Review. Inventing The Industrial Revolution: The English Patent System, 1660-1800, Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

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Feminism's Search For The Feminine: Essentialism, Utopianism, And Community, Susan H. Williams Jan 1990

Feminism's Search For The Feminine: Essentialism, Utopianism, And Community, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

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Reception Of English Law In Singapore: Problems And Proposed Solutions, Andrew B.L. Phang Jan 1990

Reception Of English Law In Singapore: Problems And Proposed Solutions, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

The problems pertaining to the reception of English law in Singapore are both numerous and complex. The academic literature generated in the local sphere alone is relatively large. It must, however, be conceded that, from apractical point of view, there has been very little interest or at least discussion. One cannot, of course, be sure about this observation, save for the very strong indication that takes the form of the overwhelming lack of litigation in the area, thus rendering it merely (so it appears) an academic monopoly. It should, however, be pointed out that this rather phlegmatic approach in practice …

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Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson Jan 1990

Review Of Bench And Bureaucracy: The Public Career Of Sir Julius Caesar, William Hamilton Bryson

Law Faculty Publications

A book review of Bench and Bureaucracy: The Public Career of Sir Julius Caesar by Lamar M. Hill.

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The Roman Law Of Trusts, William Hamilton Bryson Jan 1990

The Roman Law Of Trusts, William Hamilton Bryson

Law Faculty Publications

A book review on The Roman Law of Trusts by David Johnston.

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Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon Jan 1990

Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon

Scholarly Works

No abstract provided.

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Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski Jan 1990

Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski

Faculty Scholarship

A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …

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