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Articles 1 - 30 of 49
Full-Text Articles in Law
Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini
Whose International Law Is It Anyway? The Battle Over The Gatekeepers Of Voluntarism, Shelly Aviv Yeini
Michigan Journal of International Law
International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside …
First Amendment Fetishism, John M. Kang
First Amendment Fetishism, John M. Kang
Faculty Scholarship
The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:
• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …
The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni
The Case For A Liberal Communitarian Jurisprudence, Amitai Etzioni
Journal of the National Association of Administrative Law Judiciary
This article seeks to show that courts face difficulties without a principled, constitutional anchoring for the conception of the common good. Courts could divine the common good from the penumbra of the Fourth Amendment in the same way the Supreme Court created a right to privacy. In addition to creating a “common good” constitutional principle, the judicial branch should establish criteria to determine when this principle should take precedence over individual rights expressly preserved in the Constitution.
Servant Leadership And Presidential Immigration Politics: Inspiration From The Foot-Washing Ritual, Victor C. Romero
Servant Leadership And Presidential Immigration Politics: Inspiration From The Foot-Washing Ritual, Victor C. Romero
Washington and Lee Journal of Civil Rights and Social Justice
President Donald Trump’s immigration agenda has been criticized by pundits and scholars alike and has been thwarted by courts concerned about executive overreach. This Article contributes to this chorus of critics by viewing the current immigration regime from a Christian perspective on servant leadership, contrary to the stereotype that Christianity necessarily aligns with any one particular political brand. Jesus Christ’s entreaty that his disciples wash each other’s feet provides a useful lens through which to evaluate whether this Administration’s work effectively advances communitarianism, a value consistent with Christian immigration ethics. An examination of a range of immigration policies—from the Muslim …
Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner
Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner
Scholarly Works
For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the …
Book Review. Secession: The Morality Of Political Divorce From Fort Sumter To Lithuania And Quebec By Allen Buchanan, Mary Ellen O'Connell
Book Review. Secession: The Morality Of Political Divorce From Fort Sumter To Lithuania And Quebec By Allen Buchanan, Mary Ellen O'Connell
Mary Ellen O'Connell
No abstract provided.
Making Corporate Law More Communitarian: A Proposed Response To The Roberts Court's Personification Of Corporations, Robert M. Ackerman, Lance Cole
Making Corporate Law More Communitarian: A Proposed Response To The Roberts Court's Personification Of Corporations, Robert M. Ackerman, Lance Cole
Brooklyn Law Review
Both Citizens United and Hobby Lobby are notable for the Roberts Court’s personification of the corporation. In Citizens United, the United States Supreme Court expanded corporate speech rights in a political context; in Hobby Lobby, it accorded religious rights to corporations in an unprecedented manner. This article explains how the Court’s expansion of corporate personification has ignored both traditional corporate law doctrine regarding shareholder primacy and the fundamental distinction in corporate law between the corporate entity and the shareholders who control it.
The article takes a communitarian approach to corporate law analysis, recognizing that corporations play useful roles …
Microaggressions, Trigger Warnings, And The Fight To Redefine Free Speech: An Analysis Of The Judiciary's Response To Campus Speech Codes Through Liberal And Communitarian Perspectives, Madeleine G. O'Neill
Microaggressions, Trigger Warnings, And The Fight To Redefine Free Speech: An Analysis Of The Judiciary's Response To Campus Speech Codes Through Liberal And Communitarian Perspectives, Madeleine G. O'Neill
Senior Independent Study Theses
As campus speech codes enjoy a renaissance surrounding microaggressions and trigger warnings, understanding how and whether such speech codes can stand up to constitutional scrutiny is crucial. This project offers a historical overview of the evolution of free speech in U.S. history, with a particular focus on the jurisprudential history of hate speech and the “first wave” of litigation surrounding campus speech codes in the 1980s and ’90s. I use two theoretical frameworks, liberalism and communitarianism, to analyze the judiciary’s response to speech codes and to understand whether that response aligns with either framework. Lastly, I offer three proposals for …
Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander
Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander
Gregory S Alexander
We are a society of groups. De Tocqueville's observation that the principle of association shapes American society remains as valid today as it was in the mid-nineteenth century. For us, as for others, the vita activa is participation in a seemingly limitless variety of groups. The importance of group activity in our national character has strongly influenced the agenda of political questions that recur in American political and legal theory. One of the fundamental normative questions on this agenda concerns the proper relationship between groups and the polity. To what extent should the polity foster connections between associations and the …
Structural Models Of Religion And State In Jewish And Democratic Political Thought: Inevitable Contradiction? The Challenge For Israel, Elazar Nachalon
Structural Models Of Religion And State In Jewish And Democratic Political Thought: Inevitable Contradiction? The Challenge For Israel, Elazar Nachalon
Touro Law Review
No abstract provided.
The Elasticity Of Contract, Martha M. Ertman
Default Rules, Wealth Distribution, And Corporate Law Reform: Employment At Will Versus Job Security, David K. Millon
Default Rules, Wealth Distribution, And Corporate Law Reform: Employment At Will Versus Job Security, David K. Millon
David K. Millon
None available.
"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown
"A Land Of Strangers": Communitarianism And The Rejuvenation Of Intermediate Associations, Derek E. Brown
Pepperdine Law Review
No abstract provided.
Globalization, Global Community And The Possibility Of Global Justice, Frank J. Garcia
Globalization, Global Community And The Possibility Of Global Justice, Frank J. Garcia
Frank J. Garcia
In this essay, I suggest five ways in which globalization is changing the cosmopolitan/communitarian debate over global justice, by creating, both inter-subjectively and at the regulatory level, the constitutive elements of a limited global community. Members of this global community are increasingly aware of each other’s needs and circumstances, increasingly capable of effectively addressing these needs, and increasingly contributing to these circumstances in the first place. They find themselves involved in the same global market society, and together these members look to the same organizations, especially those at the meta-state level, to provide regulatory approaches to addressing problems of global …
Contract As Convention, F. H. Buckley
Contract As Convention, F. H. Buckley
F. H. Buckley
Contract theory is a curiously neglected field. While the efficiency of contract law rules has received much attention, the same cannot be said of the more basic question why contracts should be enforced. The reliance and autonomy explanations which contract theorists most frequently offer are moreover unpersuasive. Reliance theories would ground relief on detrimental reliance, and fail to explain why promisees should be given an incentive to rely. Autonomy theories misfire by failing to account for the conventional nature of promissory institutions, and do not explain why they ought to exist, as opposed to any number of other conventions (or …
Contract As Convention, F. H. Buckley
Contract As Convention, F. H. Buckley
F. H. Buckley
Contract theory is a curiously neglected field. While the efficiency of contract law rules has received much attention, the same cannot be said of the more basic question why contracts should be enforced. The reliance and autonomy explanations which contract theorists most frequently offer are moreover unpersuasive. Reliance theories would ground relief on detrimental reliance, and fail to explain why promisees should be given an incentive to rely. Autonomy theories misfire by failing to account for the conventional nature of promissory institutions, and do not explain why they ought to exist, as opposed to any number of other conventions (or …
An Essay On Torts: States Of Argument, Marshall S. Shapo
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch
Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch
Scholarly Works
As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …
Multiculturalism: A Challenge For Modern Criminal Justice. A Latin American Perspective, Raúl A. Carnevali
Multiculturalism: A Challenge For Modern Criminal Justice. A Latin American Perspective, Raúl A. Carnevali
Raúl A. Carnevali
Increased migratory flow has given rise to the formation of culturally heterogeneous societies, and with it the discussion of multicultural states. Specifically, what we call multiculturalism is presenting new challenges for criminal law, as certain conduct may be evaluated differently according to the cultural context of the perpetrator. In order to determine the scope of multiculturalism and exactly how criminal law should deal with the issue, it is necessary to examine the theses that address the typical problems of cultural diversity, specifically, liberalism and communitarianism. One can then understand what is meant by “culturally motivated crimes” and whether the key …
Razing The Citizen: Economic Inequality, Gender, And Marriage Tax Reform, Martha T. Mccluskey
Razing The Citizen: Economic Inequality, Gender, And Marriage Tax Reform, Martha T. Mccluskey
Contributions to Books
Published as Chapter 12 in Gender Equality: Dimensions of Women's Equal Citizenship, Linda C. McClain & Joanna L. Grossman, eds.
This chapter links the failure of U.S. social citizenship ideals to a broader weakness in U.S. ideas citizenship. To better advance policies of economic equality, U.S. law and politics needs a stronger vision not just of economic equality, but of gender equality and of democracy in general. Feminist scholars have analyzed how ideas about gender help shape the common assumption that the costs of raising and sustaining capable, productive citizens are largely private family responsibilities. But ideas about gender also …
Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin
Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin
Faculty Scholarship
The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …
Bare Justice: A Feminist Theory Of Justice And Its Application To Post-Genocide Rwanda, Megan M. Carpenter
Bare Justice: A Feminist Theory Of Justice And Its Application To Post-Genocide Rwanda, Megan M. Carpenter
Law Faculty Scholarship
Within this Article I seek to develop a feminist legal theory of justice, by questioning the ability of traditional legal strategies to facilitate justice and identifying underlying principles that contribute to a more inclusive and holistic form of justice. Secondly, I apply this theory to the situation of women victims of sexual violence in post-genocide Rwanda, in an effort to explore how these principles can contribute to a realization of justice that empowers women.
In Part II of this Article, I seek to develop a set of principles underlying a feminist reconceptualization of justice. This endeavour is a three-step process: …
Epinomia: Plato And The First Legal Theory, Eric Heinze
Epinomia: Plato And The First Legal Theory, Eric Heinze
Prof. Eric Heinze, Queen Mary University of London
In comparison to Aristotle, Plato’s general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle already find strong expression in Plato’s work. More than any thinker until the 19th and 20th centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge within democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture …
Justice To Future Generations And The Problem Of Uncertainty: Some Communitarian Approaches, Miklós Könczöl
Justice To Future Generations And The Problem Of Uncertainty: Some Communitarian Approaches, Miklós Könczöl
Miklós Könczöl
No abstract provided.
Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin
Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin
ExpressO
The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …
The Elasticity Of Contract, Martha M. Ertman
The Elasticity Of Contract, Martha M. Ertman
Faculty Scholarship
No abstract provided.
Poverty And Communitarianism: Toward A Community Based Welfare System, Michele E. Gilman
Poverty And Communitarianism: Toward A Community Based Welfare System, Michele E. Gilman
All Faculty Scholarship
This Article analyzes how communitarian political theory addresses poverty and impacts American social welfare programs. For several decades, communitarian and liberal philosophers have debated how best to achieve justice through their competing notions of personhood. Whereas liberal theorists stress the values of individual autonomy and state neutrality, communitarians assert that people are socially constituted and that liberalism therefore pays too little attention to the value of community. Yet despite their attempts to articulate a superior form of justice, communitarian theorists either ignore or misunderstand issues related to poverty, as this Article explains. Nevertheless, their insights are helpful in thinking about …
The One And The Many: Individual Rights, Corporate Rights And The Diversity Of Groups, Bruce P. Frohnen
The One And The Many: Individual Rights, Corporate Rights And The Diversity Of Groups, Bruce P. Frohnen
West Virginia Law Review
No abstract provided.
Cities In (White) Flight: Space, Difference And Complexity In Latcrit Theory, Keith Aoki
Cities In (White) Flight: Space, Difference And Complexity In Latcrit Theory, Keith Aoki
Cleveland State Law Review
This essay introduces three articles by Reggie Oh, Aaron Monty and Julian Webb that share themes related to the idea of decentralization and decentering. This essay obliquely approached the three LatCrit pieces by first evoking James Blish's science fictional vision of "Cities in Flight" - cities enabled by anti-aging and antigravitation technology to depart from the face of the Earth and roam interstellar space, a picture of radical physical decentralization. The essay then moved on to consider three justifications and visions of decentralization from Robert Nozick, Frank Michelman and Iris Young articulating libertarian, deliberative communitarian and arguably, postmodern approaches to …
Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz
Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz
Justin Schwartz
Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …