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Articles 1 - 14 of 14

Full-Text Articles in Law

Response To Francis Oakley, Kenneth Pennington Jan 2009

Response To Francis Oakley, Kenneth Pennington

Scholarly Articles and Other Contributions

No abstract provided.


Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato Jan 2007

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Scholarly Articles and Other Contributions

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning ...


Law’S Quandary: An Echo Of The Infinite, A Glimpse Of The Unfathomable, William J. Wagner Jan 2006

Law’S Quandary: An Echo Of The Infinite, A Glimpse Of The Unfathomable, William J. Wagner

Scholarly Articles and Other Contributions

No abstract provided.


The Public Trust Doctrine And Natural Law: Emanations With A Penumbra, George P. Smith Ii, Michael W. Sweeney Jan 2006

The Public Trust Doctrine And Natural Law: Emanations With A Penumbra, George P. Smith Ii, Michael W. Sweeney

Scholarly Articles and Other Contributions

In American jurisprudence, the public trust doctrine emerged as a means of protecting certain limited environmental interests, such as coastal waterways and fishing areas, which were preserved for the benefit of the public and distinguished from grants of private ownership. Modern scholars have, however, called for an expansive application of the public trust doctrine - citing, as such, the growing inventory of "changing public needs" in the environmental context, such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and scope of the public trust doctrine in order to determine ...


John Noonan On Marriage And The Family: Continuity And Change In Doctrine, William J. Wagner Jan 2003

John Noonan On Marriage And The Family: Continuity And Change In Doctrine, William J. Wagner

Scholarly Articles and Other Contributions

In support of its critique, this article first analyzes Judge Noonan's general methodological vantage and shows how he proceeds, within that vantage, to formulate general moral norms. Next, it compares Judge Noonan's work with trends in the reasoning of the United States Supreme Court between 1965 and the present to suggest that some of Noonan's assumptions about the longer-term consequences of his own methodology for stability and continuity in moral theology may be unwarranted. Finally, it argues that Noonan is not justified in assuming that adjudicative reasoning, without more, suffices for the formulation of general moral norms ...


Balancing As Art: Justice White And The Separation Of Powers, William J. Wagner Jan 2003

Balancing As Art: Justice White And The Separation Of Powers, William J. Wagner

Scholarly Articles and Other Contributions

In more than one key opinion, Justice Byron White cited Justice Robert H. Jackson's concept of the "art of governing" as the cornerstone of his own approach to separation-of-powers problems.' In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson had written:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable ...


Applying Just War Jus Bello Doctrine To Reprisals: An Afghan Hypothetical, Michael F. Noone Jr. Jan 2001

Applying Just War Jus Bello Doctrine To Reprisals: An Afghan Hypothetical, Michael F. Noone Jr.

Scholarly Articles and Other Contributions

No abstract provided.


As Justice And Prudence Dictate: The Morality Of America’S War Against Terrorism—A Response To James V. Schall, S.J.,, William J. Wagner Jan 2001

As Justice And Prudence Dictate: The Morality Of America’S War Against Terrorism—A Response To James V. Schall, S.J.,, William J. Wagner

Scholarly Articles and Other Contributions

This response to Father Schall's article explores just how three principles, which he proposes in general terms as central to integrity in moral reasoning and decision over the use of military force, serve, in fact, to organize an assessment of the rights and wrongs of actions by states and individuals within a conflict like the one coming to a crisis on September 11th. In the course of its analysis, the article means to show that prudence has a role, not only once the requirements of justice are satisfied, as a too casual reading of Father Schall's article might ...


The Pursuit Of The Hunt, Interrupted: Changing Literary Image Of Law, William J. Wagner Jan 2000

The Pursuit Of The Hunt, Interrupted: Changing Literary Image Of Law, William J. Wagner

Scholarly Articles and Other Contributions

In the course of reaching its substantive conclusions, this article seeks to shed light on the theoretical and methodological requisites of a valid and fruitful application of literary sources in jurisprudence.

The article begins by explicating the original literary image of the pursuit of the hunt interrupted, within its thematic setting in Aeschylus. It then offers theoretical and methodological postulates for drawing out the fuller meaning for law and legal studies of the image. It explores variations on the same pattern of imagery in subsequent works of Western literature, and offers reflections on how these variations can enrich our understanding ...


On Doing Justice And Walking Humbly With God: Catholic Social Thought On Law As A Tool For Achieving Justice, Lucia A. Silecchia Jan 1997

On Doing Justice And Walking Humbly With God: Catholic Social Thought On Law As A Tool For Achieving Justice, Lucia A. Silecchia

Scholarly Articles and Other Contributions

The text of the 1996 “Mirror of Justice” lecture at the Catholic University of America, this article explores the potential - and the limitations - of law as a tool for achieving justice. Drawing heavily on principles of Catholic social thought, it also considers the various ways in which “justice” may be defined.


In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson Jan 1997

In The Tribunal Of Conscience: Mills V. Wyman Reconsidered, Geoffrey R. Watson

Scholarly Articles and Other Contributions

In this Article, Professor Watson explores the historical record surrounding Mills v. Wyman, 20 Mass (3 Pick) 207 (1825), one of the leading American cases on moral obligation in contract law. In Mills, the Massachusetts Supreme Judicial Court refused to enforce a father's promise to compensate a Good Samaritan who had cared for the father's dying son. Professor Watson combs the historical evidence--court records, census reports, genealogical data, probate records, military rolls, and so on-and argues that the Mills court got both the facts and the law wrong. According to Professor Watson, the father did not make the ...


What’S Next After Separationism?, John H. Garvey Jan 1997

What’S Next After Separationism?, John H. Garvey

Scholarly Articles and Other Contributions

Professor Carl Esbeck argues in his article' that the traditional theory of separationism is giving way to a theory of equality (or more accurately, protection for religious choice). The argument is very astute, and I agree with much of it. I will give my own perspective on the same two points.


The Role Of Basic Values In The Contemporary Constitutional Hermeneutics Of Germany And The United States, William J. Wagner Jan 1996

The Role Of Basic Values In The Contemporary Constitutional Hermeneutics Of Germany And The United States, William J. Wagner

Scholarly Articles and Other Contributions

No abstract provided.


Nuisance Law: The Morphogenesis Of An Historical Revisionist Theory Of Contemporary Economic Jurisprudence, George P. Smith Ii Jan 1995

Nuisance Law: The Morphogenesis Of An Historical Revisionist Theory Of Contemporary Economic Jurisprudence, George P. Smith Ii

Scholarly Articles and Other Contributions

The debate over the scope of the concept of reasonableness - its application and use in testing the legality of normative conduct - is of long standing. Recently, it has been suggested that reasonableness be substituted for both legal and moral rightness. I go further in this Article and suggest reasonableness incorporates the goal of economic efficiency and that it is tested or shaped by a simple cost-benefit model that has its legal etiology in the equitable principle of balancing that, in turn, has its roots in the principle of Sic utere tuo ut alienum non laedas, or So use your own ...