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Full-Text Articles in Law
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster
UF Law Faculty Publications
This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …
Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll
Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll
Working Paper Series
Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …
Pragmatist And Non-Pragmatist Knowledge Practices In American Law, Mariana Valverde
Pragmatist And Non-Pragmatist Knowledge Practices In American Law, Mariana Valverde
Pragmatism, Law and Governmentality
For anyone interested in documenting and analyzing knowledge practices, legal arenas prove to be fruitful sites, for at least two reasons. 1) First, questions of evidence and of authority are often explicitly contested, with the contestations often forming part of a court’s public record and/or going on in the public setting of the courtroom. Thus, unlike science studies scholars, who must gain access to social interactions that are not mentioned in scientific papers and that do not take place in public view, legal studies scholars have vast amounts of material – affidavits, trial transcripts, etc– that can readily be analyzed, …
Styles Of Pragmatism, Social Science And The Law, Robert P. Burns
Styles Of Pragmatism, Social Science And The Law, Robert P. Burns
Pragmatism, Law and Governmentality
I have long held as an ideal the words of one of foremost American interpreters of John Dewey's philosophy: "An adequate, comprehensive political and social theory must be at once empirical, interpretive, and critical." How these styles of social inquiry, whose practitioners often seem at war, might cohere has never been completely clear. This essay is an attempt to work out in a very limited context some of the issues surrounding these relationships. In particular, I want to explore the relationship between the interpretive style, which I take to be central, and the other two. The focus of these remarks …
The Right To A Jury Decision On Questions Of Fact Under The Seventh Amendment, Paul F. Kirgis
The Right To A Jury Decision On Questions Of Fact Under The Seventh Amendment, Paul F. Kirgis
Faculty Law Review Articles
In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on 'functional considerations" in assigning a question of patent claim construction to the judge. In …
Western Justice, Richard B. Collins
A Reply--The Missing Portion, Pierre Schlag
Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel
Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel
Publications
No abstract provided.
Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran
Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran
Articles
The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.
This Essay presents one side, the dark side, of the …
Marbury V. Madison And Modern Judicial Review, Robert F. Nagel
Marbury V. Madison And Modern Judicial Review, Robert F. Nagel
Publications
This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …
Justice White And Judicial Review, Philip J. Weiser
Justice White And Judicial Review, Philip J. Weiser
Publications
No abstract provided.
The Unruliness Of Rules, Peter A. Alces
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Faculty Scholarship
No abstract provided.
Shareholder Value And Auditor Independence, William W. Bratton
Shareholder Value And Auditor Independence, William W. Bratton
All Faculty Scholarship
This Article questions the practice of framing problems concerning auditors’ professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal’s control and cannot act independently. For the same reason, auditors’ duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
What Do We Mean By "Judicial Independence"?, Stephen B. Burbank
All Faculty Scholarship
In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …
About Morality And The Nature Of Law, Joseph Raz
About Morality And The Nature Of Law, Joseph Raz
Faculty Scholarship
In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.