Law Commons^™

Natural Law, Positive Law, And Conflicting Social Norms In Harper Lee's To Kill A Mockingbird, Maureen E. Markey

Maureen E. Markey

This Article explores the complex interaction of natural law, positive law, and conflicting social norms in To Kill a Mockingbird by Harper Lee, one of the most widely read works in all of American literature and a classic of the Law and Literature canon. Because Atticus Finch, more than any real life lawyer, exemplifies both the personal and professional identity that most lawyers strive for, the novel has been hugely influential in many lawyers= lives. In a profession often stereotyped as greedy, amoral, and uncaring, Atticus represents transcendent moral values, traditionally recognized as a natural law view of the world, …

Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni, Chrisopher Dodrill

Francisco J Benzoni

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …

Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change, Winston P. Nagan, Judit K. Otvos

Winston P Nagan

No abstract provided.

Psychologising Jekyll, Demonising Hyde: The Strange Case Of Criminal Responsibility, Nicola Lacey

Nicola Lacey

Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility

Nicola Lacey

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang

Lee J Strang

No abstract provided.

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

David C. Gray

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin Lozano

Benjamin J Lozano

In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …

Assuring All Substantial Rights In Exclusive Patent Licenses, Jeff Newton

Jeff Newton

Despite their best of intentions, parties draft license agreements which purport to have the patentee grant sufficient rights for a licensee to assert a patent against third parties, but fail to grant all substantial rights to sue. The surprising number of cases decided against the intended transfer of all substantial rights to empower a licensee to sue on a patentee is a testimony to the complexity of the jurisprudence in this area. This article clarifies the jurisprudence as to all substantial rights in patent licenses by reviewing the primary categories in a licensing transactions, analyzing thirteen key cases on point …

Error Correction, Chad M. Oldfather

Chad M Oldfather

Under most accounts of appellate review, error correction stands with law declaration as the core institutional functions. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received little attention, and there appears to be a consensus that it is straightforward and settled. One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts’ role is simply to find them. On that understanding there is nothing for appellate courts to do but correct error. …

The Influence Of Franz Kafka On American Jurisprudence, Jonathan Blackmore

Jonathan Blackmore

The attached article explores the ways in which the author, Franz Kafka, has influenced American Jurisprudence. Kafka resided in Prague in the early 20th century and is well known for The Trial and The Metamorphosis. Kafka and his works have been cited in judicial opinions hundreds of times over the past several decades. Interpretations of his work resulted in the adjective: Kafkaesque, meaning: “having a nightmarishly complex, bizarre, or illogical quality.” Judges and lawyers often use Kafka to portray government action as arbitrary or illogical. This article explains the key ways in which Kafka and his works are used by …

Opinion Writing And Opinion Readers, Meehan Rasch

Meehan Rasch

The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, …

Delivering The Goods: Herein Of Delegation, Authority And The Mead Case, Patrick Brennan

Patrick McKinley Brennan

No abstract provided.

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Richard Kay

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …

Anti-Snitching Norms And Loyalty, Bret Asbury

Bret Asbury

In recent years a troubling trend has emerged within a number of poor, black communities. Termed “Stop Snitching,” it has manifested itself in the form community members’ refusing to cooperate with police investigations of community crimes. The result of this widespread refusal to cooperate has been a reduced number of crimes solved within these communities; without cooperating witnesses, it has proven exceedingly difficult for police to make criminal cases. Reactions to Stop Snitching have taken two predominant forms, both of which are mistaken. The first, most often attributed to law enforcement officers, is contempt. To them, community members who do …

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

The Architecture Of Law: Building Law On A Solid Foundation The Eternal And Natural Laws, Brian M. Mccall

Brian M McCall

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some …

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

Mark Fenster

Buying Commercial Law: Choice Of Forum, Choice Of Law, And Network Effect, Bryan H. Druzin

Bryan H. Druzin

Haunted By History's Ghostly Gaps: A Literary Critique Of The Dred Scott Decision And Its Historical Treatments, Allen P. Mendenhall

Allen Mendenhall

In his opinion for the majority, Chief Justice Roger B. Taney eliminates Dred Scott the man from the text and divests Scott of a body, thereby transforming him into a sort of incorporeal ghost that signals the traces and tropes of slavery. Subsequent historians, journalists, and politicians have made Scott even more inaccessible by either relying on Taney’s text, which erases Scott, or by failing to recover Scott’s narrative. Taney’s opinion codified “the facts” of the case as official or authoritative despite a lack of reference to their human subject. Later writers relied on this received version despite its obvious …

Adequate (Non)Provocation And Heat Of Passion As Excuse Not Justification, Reid Griffith Fontaine, Jd, Phd

Reid G. Fontaine

For a number of reasons, including the complicated psychological nature of reactive homicide, the heat of passion defense has remained subject to various points of confusion. One persistent issue of disagreement has been whether the defense is a partial justification or excuse. In this Article, I highlight and categorize a series of varied American homicide cases in which the applicability of heat of passion was supported although adequate provocation (or significant provocation by the victim) was absent. The cases are organized to illustrate that even in circumstances in which there is no actual provocation, or the provocation is not sourced …