Law Commons^™

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram

David Ingram

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …

Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram

David Ingram

In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from structures beyond their control (but perhaps amenable to government remediation)? If both of these explanations are true (as I …

Does Political Islam Conflict With Secular Democracy? Philosophical Reflections On Religion And Politics, David Ingram

David Ingram

Abstract: This paper rebuts the thesis that political Islam conflicts with secular democracy. More precisely, it examines three sorts of claims that ostensibly support this thesis: (a) The Muslim religion is incompatible with secular democracy; (b) No Muslim country has instituted secular democracy; and (c) No movement seeking to advance its agenda as aggressively as political Islam does can do so with the degree of moderation required of a political party that is committed to secular democracy. Theologians, philosophers, and political scientists have debated (a) through (c) within the jurisdiction of their respective fields. I propose to combine these debates …

Order Of Delegate Arrival At Philadelphia Tabled Against Support/Opposition To Constitution, Peter J. Aschenbrenner, David Kimball

Peter J. Aschenbrenner

Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Arrival of the delegates is matched with support/opposition for the Constitution.

Delegate Arrivals At Philadelphia Compared To Voting Records At The Ratification Conventions By State, Peter J. Aschenbrenner, David Kimball

Peter J. Aschenbrenner

Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.

Table Annexed To Article: Delegate Arrivals In Philadelphia Compared To Voting Records, Peter J. Aschenbrenner, David Kimball

Peter J. Aschenbrenner

Fifty-five delegates were appointed by twelve states to attend the federal convention in May, 1787. Eleven states ratified the Constitution between December 7, 1787 and July 26, 1788. When delegate arrival dates are compared with the order in which their respective state ratification conventions completed their business, a significant number of delegates supporting the constitution are missing in action.

31. How Attorneys Question Children About The Dynamics Of Sexual Abuse And Disclosure In Criminal Trials., Stacia N. Stolzenberg, Thomas D. Lyon

Thomas D. Lyon

Table Annexed To Article: A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter J. Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.

Towards Respecting Indigenous Rights In Development Policy: The Case Of A Community-Based Forest Management Project In Panama, Benjamin Goodman

Benjamin Goodman

As Latin American countries reach new heights of development, perched on the shoulders of an increasingly globalized economy, their local indigenous communities continue to be the most marginalized and impoverished people in the world. Sustainable development initiatives present themselves as a way to contribute to global economic development, while at the same time, respecting the livelihoods of rural peoples and preserving natural resources for future generations. However, unsustainable exploitation of natural resources continues to threaten the livelihoods and identities of many rural indigenous communities. As the economic, legal and political marginalization of indigenous peoples persists, the inevitable result of these …

Democracy And Disgust: Reflections On Public Choice, Daniel A. Farber

Daniel A Farber

No abstract provided.

Uncertainty, Daniel A. Farber

Daniel A Farber

The article discusses environmental risks and uncertainties and the current approaches to risk assessment. It is said that conventional risk assessment is a powerful methodology, but over-reliance on it can lead to a failure to acknowledge any risks that do not lend themselves to the technique. Uncertainties can be associated with fat-tailed distributions.

When Students Lose Perspective: Clinical Supervision And The Management Of Empathy, Laurel E. Fletcher, Harvey M. Weinstein

Laurel E. Fletcher

This article examines the opportunities and problems that arise in the process of lawyer-client communication. The authors suggest that empathic communication is a critical dimension of lawyering and that without empathy, much valuable affective and cognitive knowledge about the client's case may be lost. A critical first step in this process involves identification with the client. In the article, the authors clarify how identification differs from empathy and challenge the oft-cited concern of “over-identification.” In addition, they examine those situations in which identification with a client may have negative consequences for representation. These issues are explored in the context of …

Contract Law And Modern Economic Theory, Daniel A. Farber

Daniel A Farber

No abstract provided.

From Plastic Trees To Arrow's Theorem, Daniel A. Farber

Daniel A Farber

No abstract provided.

Indirect Land Use Change, Uncertainty, And Biofuels, Policy, Daniel A. Farber

Daniel A Farber

No abstract provided.

Access And Exclusion Rights In Electronic Media:Complex Rules For A Complex World, Daniel A. Farber

Daniel A Farber

No abstract provided.

Brown To Black: The Politics Of Judicial Appointments For Latinos, Maria Echaveste

Maria Echaveste

Discusses observations in judicial appointment for Hispanics. Existence of barriers to Latino judicial appointments; Absence of unity among Hispanic functions to forestall the nomination of qualified Latinos; Lack of qualifications due to the raw political nature of judicial appointments; Illustration of the situation through actual events; Revelation of lessons from foregoing reflections.

Places, Products, And People "Make Each Other Up": Culture Cycles Of Self And Well-Being, Victoria Plaut

Victoria Plaut

In this chapter, we first analyze how four U.S. regions (West, Northeast, Midwest, South) each produces their own culture cycle, and we then consider how place intersects with both race and class (Latinos in the Southwest, Asians in the Pacific region, Blacks in industrial northern cities, and rural Appalachians). We organize each analysis around a geographic unit and its associated historically shaped ideas and values, a set of products and practices that residents of that place create and come into frequent contact with (e.g., promotional material for universities, websites, personal ads), and residents’ psychological tendencies related to self and well-being

Naming Constitutions And Constitutional Text In The Early American Republic, Peter J. Aschenbrenner

Peter J. Aschenbrenner

From the beginning of the nation (October 7, 1777) to the disaster of Dred Scott (March 6, 1857), the United States has produced thirty-two articles worth of constitutioinal text, in 133 constitutional text units, beginning with the Articles of Confederation (opening date noted above). OCL names all the writings and groups them, for the first time.

Table Annexed To Article: Naming Constitutions/ Constitutional Text In The Early American Republic, Peter J. Aschenbrenner

Peter J. Aschenbrenner

From the beginning of the nation to disaster of Dred Scott (March 6, 1857), the United States has produced twenty-one writings which may be grouped as constitutional text units after the Articles of Confederation. OCL names all the writings and groups them, for the first time.

Intellectual Property Policy, Matthew Rimmer

Matthew Rimmer

30. Facilitating Maltreated Children's Use Of Emotional Language., Elizabeth C. Ahern, Thomas D. Lyon

Thomas D. Lyon

U.S.-Latin American Free Trade Agreements And Access To Medicine, Dominique Lochridge-Gonzales

Dominique Lochridge-Gonzales

U.S.-Latin American Free Trade Agreements and Access to Medicine analyzes the effects of FTA provisions on access to medicine. Access to medicine lies at the heart of the crossroads between the international human right to health and international intellectual property law delineated in TRIPS. True availability of essential medicines to millions of people depends on a balance between the formations of these medicines in the first place (through rewarding innovation) and promulgating rules that allow for practicable access to those medicines. FTAs provide a method for implementing the right to health by fostering practicable access to essential medicines in the …

Open Data As A Foundation For Innovation: The Enabling Effect Of Free Public Sector Information For Entrepreneurs, Erik Lakomaa, Jan Kallberg

Jan Kallberg

Public open data access has a direct impact on future IT entrepreneurs' perception of ability to execute their business plans. Using high quality (50%–98% response rate) survey data from 138 Swedish IT-entrepreneurs, we find that access to public open data is considered very important for many IT-startups; 43% find open data essential for the realization of their business plan and 82% claim that access would support and strengthen the business plan. The survey also indicates a significant interest in, and willingness to pay for, public sector information data from companies that do not intend to commercialize data themselves but intend …

A Fragile Alliance: How The Crisis In Egypt Caused A Rift Within The Anti-Syrian Regime Block, Ahmed Souaiaia

Ahmed E SOUAIAIA

Qatar, Saudi Arabia, United Arab Emirate (UAE), Turkey, and the West condemned in unison the Syrian regime for its harsh treatment of Syrians from the first day of the uprising in that country. Many observers were skeptical of the stated reasons for this sudden interest in human rights issues given that the Gulf States are in fact models of repressive governance. As the reaction to the Egyptian crisis revealed, the opposition to the Syrian regime was not motivated by its stated goals (support for democracy and condemnation for authoritarianism). It was dictated by narrow political, ideological, and sectarian interests.

Licensure Of Health Care Professionals: The Consumer's Case For Abolition, Charles H. Baron

Charles H. Baron

While state medical licensure laws ostensibly are intended to promote worthwhile goals, such as the maintenance of high standards in health care delivery, this Article argues that these laws in practice are detrimental to consumers. The Article takes the position that licensure contributes to high medical care costs and stifles competition, innovation and consumer autonomy. It concludes that delicensure would expand the range of health services available to consumers and reduce patient dependency, and that these developments would tend to make medical practice more satisfying to consumers and providers of health care services.

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Grassroots_Grassroots Grassroots Rs 15 August 15, 2012 - Volume 4 Issue 8 I N S I D E A Journal Of The Press Institute Of India Promoting Reportage On The Human Condition, Professor Vibhuti Patel

Professor Vibhuti Patel

During the past 15 years, Women’s Grievance Redressal Cells set up by the Mohalla Committee Movement in Maharashtra have played an important role in cementing the bonds between communities, spouses, neighbours and enlightened the youth. Meaningful relationships between individuals in the family have been forged as a result

Lessons Learned From Pakistan: A Dissertation On The Bush-Obama Drone Doctrine, Michael A. Pipa

Michael A Pipa

The first use of the modern day attack drone by the United States was in Afghanistan in mid 2002, and for the past 11 years attack drones have been used by the United States in as many countries as Pakistan, Yemen and Somalia. When considering the alternatives to using drones, such as sending marines on the ground to complete a mission or flying a piloted jet over enemy territory to gather intelligence, as well as the military power that the use of these vehicles projects, the attack drone has become the weapon of choice in the war on terror for …