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Full-Text Articles in Law

Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr May 1998

Guerrillas In Our Midst: The Assault On Radicals In American Law, Daria Roithmayr

Michigan Law Review

On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance. At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to …


The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury Jan 1998

The Concept Of Compliance As A Function Of Competing Conceptions Of International Law, Benedict Kingsbury

Michigan Journal of International Law

The purpose of this article is to challenge the tendency in the existing literature to view "compliance" simply as "correspondence of behavior with legal rules." This tendency is intelligibly based in a theoretical view that law can properly be defined and understood as a body of rules and expresses a practical concern to get on with the important task of producing empirical studies of compliance. The logical corollary is that a reasonable degree of conformity between these rules and actual behavior is necessary to an efficacious legal system, so that recurrent and widespread non-conformity with rules would usually call into …


Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog Jan 1998

Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog

Articles

I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …


The Gift Of Language, Joseph Vining Jan 1998

The Gift Of Language, Joseph Vining

Articles

Style and substance cross-are genetically related as we now might want to say. Each draws on and is implied by the other. One point at which they cross is our sense of the nature of human language, what language is and can be, what it is not and can never be. The language of law is part of human language. Law is a distinctive form of thought, but it lives in human language. "Rule" might be thought synonymous with "law," but for all its talk of rules, the practice of law does not begin with a descriptive statement, or a …


The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller Jan 1998

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

Articles

Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries …


Logic And Elements. (Premises And Conclusions: Symbolic Logic For Legal Analysis)." , Richard D. Friedman Jan 1998

Logic And Elements. (Premises And Conclusions: Symbolic Logic For Legal Analysis)." , Richard D. Friedman

Articles

We may happily agree with Holmes that logic is not the life of the law' and yet contend that logic should play a significant role in legal discourse. Logic cannot demonstrate the truth of premises, and so by itself it cannot demonstrate the merits of a legal argument. Moreover, even given the premises, it may be that a leap of faith, or intuition, has an irreducible role at least in some good legal arguments.2 But at least a sound legal argument will not be an illogical one. An argument will not be persuasive if it appears to violate basic principles …


State Successions And Statelessness: The Emerging Right To An Effective Nationality Under International Law, Jeffrey L. Blackman Jan 1998

State Successions And Statelessness: The Emerging Right To An Effective Nationality Under International Law, Jeffrey L. Blackman

Michigan Journal of International Law

This paper surveys some of the recent developments in international law relating to nationality and state succession, and suggests a growing convergence among several legal principles-specifically the principle of effective nationality, the individual right to a nationality and the corresponding duty of states to prevent statelessness, and the norm of nondiscrimination. At some point this convergence of such diverse areas of law as nationality, diplomatic protection, and human rights will impose positive duties on successor states with respect to their inherited populations: namely the duty to secure effective nationality for persons affected by state succession.


Enforcement And The Evolution Of Cooperation, George W. Downs Jan 1998

Enforcement And The Evolution Of Cooperation, George W. Downs

Michigan Journal of International Law

The purpose of this article is to broadly characterize the political economy or institutionalist theory of enforcement and to present data that is at least a first step toward evaluating the managerial and transformationalist critiques. The first section will present a short, schematic summary of the role of enforcement as it is currently viewed in the "new institutions" or political economy literature in international relations. While doubtless familiar to many readers, this is an important point of departure. A notable portion of the debate about the role of enforcement continues to stem from differences in terminology and from the fact …