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Articles 1 - 30 of 38
Full-Text Articles in Law
Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod
Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod
Faculty Articles and Papers
No abstract provided.
Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson
Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson
Scholarly Works
It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …
Democracy And Its Critics, Cary Coglianese
Democracy And Its Critics, Cary Coglianese
All Faculty Scholarship
No abstract provided.
Rawls On Political Community And Principles Of Justice, James W. Nickel
Rawls On Political Community And Principles Of Justice, James W. Nickel
Articles
No abstract provided.
The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg
The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
The Corporate Personality In American Law: A Summary Review, Phillip Blumberg
The Corporate Personality In American Law: A Summary Review, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Maintaining Consistency In The Law Of The Large Circuit: The Origins And Operation Of The Ninth Circuit's Limited En Banc Court, Arthur D. Hellman
Maintaining Consistency In The Law Of The Large Circuit: The Origins And Operation Of The Ninth Circuit's Limited En Banc Court, Arthur D. Hellman
Book Chapters
Once again, Congress is considering legislation to divide the largest of the federal judicial circuits, the Ninth Circuit Court of Appeals. The Ninth Circuit extends over nine western states, including California, and it has 29 active judges, almost twice the number of the next-largest circuit. Much of the debate over proposals for restructuring focuses on a feature unique to the Ninth Circuit, the limited en banc court (LEBC). In all of the other circuits, when the court of appeals grants rehearing en banc, the case is heard by all active judges. In the Ninth Circuit, the en banc court is …
Preface, Charles F. Wilkinson
Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon
Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon
Scholarly Works
No abstract provided.
A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn
A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn
Articles
This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.
Under a modernized standard, a court should redress immediate pretrial …
The (Unlikely) Death Of Property, James E. Krier
The (Unlikely) Death Of Property, James E. Krier
Articles
Is property dead? Thomas Grey has argued that it is.' If he is right, we have an answer to the principal question of this symposium panel, which asks whether regulation and property are allies or enemies. If Professor Grey is right, they are neitherbecause property no longer exists. If he is wrong (as I believe he partly is), then, I argue, regulation and property are allies and enemies alike, and will remain so.
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. Croson, David R. Barnhizer
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. Croson, David R. Barnhizer
Law Faculty Articles and Essays
The first part of this article examines some of the main features of Finnis's theory of natural law. It suggests that Finnis offers a "soft" theory of natural law anchored in a richer and more realistic conception of human nature than has generally characterized natural law theory. The article's second part briefly describes some methodological aspects of Finnis's theory. The third part seeks to apply Finnis's principles to Justice O'Connor's opinion in City of Richmond v. J. A. Croson Co., a decision that makes it extremely difficult for state and local governments to combat the subtle devises and consequences of …
Judging The Judges: Three Opinions, James Boyd White
Judging The Judges: Three Opinions, James Boyd White
Articles
For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court …
Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins
Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins
Publications
No abstract provided.
Normative And Nowhere To Go, Pierre Schlag
The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins
The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins
Faculty Articles
As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …
Jurisprudential Oaks From Mythical Acorns: The Hart‐Dworkin Debate Revisited, Andrew B.L. Phang
Jurisprudential Oaks From Mythical Acorns: The Hart‐Dworkin Debate Revisited, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
This article attempts to demonstrate, via the famous Hart-Dworkin debate on the nature and functions of judicial discretion, that substantial jurisprudential disputes as well as theories can, and do, arise from misconceived critiques, whether intended or otherwise. It also seeks to show that, whilst Dworkin's initial critique of Hart was misconceived, his theory of adjudication that arose as a result of responses to his initial views is a positive contribution to learning, although I argue that Dworkin's views are not, in the final analysis, sufficiently persuasive to constitute a radical departure from Hart's own views.
The Rule Of Law And The Rule Of Laws, David F. Forte
The Rule Of Law And The Rule Of Laws, David F. Forte
Law Faculty Articles and Essays
The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller (which John Finnis accepts), but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of …
The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells
The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells
Scholarly Works
Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal …
"Le Hors De Texte, C'Est Moi": The Politics Of Form And The Domestication Of Deconstruction, Pierre Schlag
"Le Hors De Texte, C'Est Moi": The Politics Of Form And The Domestication Of Deconstruction, Pierre Schlag
Publications
No abstract provided.
Meeting The Enemy, Robert F. Nagel
Whose Nature? Practical Reason And Patriarchy, Lynne Henderson
Whose Nature? Practical Reason And Patriarchy, Lynne Henderson
Scholarly Works
No abstract provided.
Psychodynamics And The Insanity Defense: Ordinary Common Sense And Heuristic Reasoning, Michael L. Perlin
Psychodynamics And The Insanity Defense: Ordinary Common Sense And Heuristic Reasoning, Michael L. Perlin
Articles & Chapters
No abstract provided.
Alive And Well: Religious Freedom In The Welfare State, Anita L. Allen
Alive And Well: Religious Freedom In The Welfare State, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Retaining The Rule Of Law In A Chevron World, Michael A. Fitts
Retaining The Rule Of Law In A Chevron World, Michael A. Fitts
All Faculty Scholarship
No abstract provided.
The Legal Culture Of The Formative Period In Sherman Act Jurisprudence, William P. Lapiana
The Legal Culture Of The Formative Period In Sherman Act Jurisprudence, William P. Lapiana
Articles & Chapters
No abstract provided.
The Natural Law Of Rhythm And Equality, John W. Ragsdale Jr
The Natural Law Of Rhythm And Equality, John W. Ragsdale Jr
Faculty Works
The quest for natural law can easily seem futile to the secularist, and the legal terrain beyond human institutions has often been abandoned to the theologians and the supernaturalists. Most contemporary legal philosophers tend to focus on law as process, on legal positivism and legal realism, on the relativity of values or on the legal masking of class, race or gender interests. This piece will not do direct battle with these philosophies, all of which may have internal integrity and legitimacy within their chosen spheres. Instead, this piece will reexplore the possibility and propriety of linking the reality of law …
Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii
Scots Law In Post-Revolutionary And Nineteenth-Century America: The Neglected Jurisprudence, C. Paul Rogers Iii
Faculty Journal Articles and Book Chapters
No abstract provided.
Surrogacy, Slavery, And The Ownership Of Life, Anita L. Allen
Surrogacy, Slavery, And The Ownership Of Life, Anita L. Allen
All Faculty Scholarship
No abstract provided.