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Full-Text Articles in Law
Majestic Law And The Subjective Stop, Kyron J. Huigens
Majestic Law And The Subjective Stop, Kyron J. Huigens
Articles
Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …
A Theory Of Copyright Authorship, Christopher Buccafusco
A Theory Of Copyright Authorship, Christopher Buccafusco
Articles
The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Articles
A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …
Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson
Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson
Articles
This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.
Preface (On Alain Badiou’S Handwriting), Peter Goodrich
Preface (On Alain Badiou’S Handwriting), Peter Goodrich
Articles
No abstract provided.
Why Are There Four Hegelian Judgments, David G. Carlson
Why Are There Four Hegelian Judgments, David G. Carlson
Articles
Hegel is the philosopher of threes. His entire system is triune: logic-nature-spirit. Within the logic is a triune structure: being, essence, notion. Within notion there is a triad: subject-object-idea. Within subjectivity, there is a triad: notion, judgment, syllogism. Yet when we examine Hegel's critique of judgment, there are four (not three): inherence-reflection-necessity-notion.
This paper tries to explain why this is so. There is a disturbing element present at all times in Hegel's logic - what Slavoj Zizek named a silent fourth, which erupts and manifests itself in judgment. This paper refines and justifies Zizek's insight, arguing from the text of …
Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok
Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok
Articles
No abstract provided.
Hegel’S Theory Of Measure, David G. Carlson
Hegel’S Theory Of Measure, David G. Carlson
Articles
The final segment in Hegel's analysis of "being" is measure - the unity of quality and quantity. At stake in these chapters is the difference between quantitative and qualitative change. A being or thing is indifferent to quantitative change, which comes from the outside. For instance, a legislature can increase the stringency of zoning regulations, and yet the legislation is still constitutional "zoning." But there comes a point at which quantitative change effects a qualitative change - zoning becomes an uncompensated "taking" of property. This paper analyzes how Hegel, in the "Science of Logic," derives measure from the categories of …
Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld
Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld
Articles
The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …
The Traumatic Dimension In Law, David G. Carlson
The Traumatic Dimension In Law, David G. Carlson
Articles
This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to …
Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich
Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich
Articles
It is my view, and here, no doubt, I am pre-empting my conclusion, that what literary and feminist historicism recognizes as the querelle des femmes, the debate as to the status and political role of women, is in fact underpinned and motivated by a much less explicit, yet nonetheless portentous, querelle des lois. The querelle des femmes, in other words, was always a polemic as to the legal status of women, as to their definition and role in theology and jurisprudence, canon and civil law. More than that, however, what the recovery of amatory jurisprudence can help to show is …
Rethinking The Penalty Phase, Kyron Huigens
Rethinking The Penalty Phase, Kyron Huigens
Articles
This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …
Habermas And The Postal Rule, Peter Goodrich
Law And Order, Arthur J. Jacobson
It’S A Positivist, It’S A Pragmatist, It’S A Codifier! Reflections On Nietzsche And Stendhal, Richard H. Weisberg
It’S A Positivist, It’S A Pragmatist, It’S A Codifier! Reflections On Nietzsche And Stendhal, Richard H. Weisberg
Articles
No abstract provided.
Pragmatism, Pluralism, And Legal Interpretation: Posner's And Rorty's Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld
Pragmatism, Pluralism, And Legal Interpretation: Posner's And Rorty's Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld
Articles
No abstract provided.
Translating Legendre Or, The Poetical Sermon Of A Contemporary Jurist, Peter Goodrich
Translating Legendre Or, The Poetical Sermon Of A Contemporary Jurist, Peter Goodrich
Articles
No abstract provided.
The Legality Of Humanitarian Intervention, Malvina Halberstam
The Legality Of Humanitarian Intervention, Malvina Halberstam
Articles
No abstract provided.
Tripartite Voidable Preferences, David G. Carlson
Tripartite Voidable Preferences, David G. Carlson
Articles
This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to …
Doctor Duxbury’S Cure: Or, A Note On Legal Historiography, Peter Goodrich
Doctor Duxbury’S Cure: Or, A Note On Legal Historiography, Peter Goodrich
Articles
No abstract provided.
Jacob Burns And The Institute For Advanced Legal Studies, David G. Carlson
Jacob Burns And The Institute For Advanced Legal Studies, David G. Carlson
Articles
No abstract provided.
Judaism And Postmodernism, Suzanne Last Stone
Autopoiesis And Justice, Michel Rosenfeld
The Idea Of A Legal Unconscious, Arthur J. Jacobson
Autopoiesis And Positivism, Richard H. Weisberg
Timeless Rules: Can Normative Closure And Legal Indetermincy Be Reconciled?, Charles M. Yablon
Timeless Rules: Can Normative Closure And Legal Indetermincy Be Reconciled?, Charles M. Yablon
Articles
No abstract provided.
Suicide And Justice, Arthur J. Jacobson
Sinaitic And Noahide Law: Legal Pluralism In Jewish Law, Suzanne Last Stone
Sinaitic And Noahide Law: Legal Pluralism In Jewish Law, Suzanne Last Stone
Articles
No abstract provided.
Derrida, Law, Violence And The Paradox Of Justice, Michel Rosenfeld
Derrida, Law, Violence And The Paradox Of Justice, Michel Rosenfeld
Articles
No abstract provided.
Foreword, David Rudenstine