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Articles 1 - 9 of 9

Full-Text Articles in Law

The Moral Dilemma Of Positivism, Anthony D'Amato Jan 1986

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have ...


An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal Jan 1986

An Alternative Approach To The Good Faith Controversy, Ronald J. Bacigal

Law Faculty Publications

This Article examines the role of police motivation in all facets of fourth amendment jurisprudence and demonstrates that the Court has often considered good faith as one relevant but ill-defined factor in determining substantive aspects of the fourth amendment. The Article concludes that this ambiguous and flexible approach to substantive fourth amendment rights should be utilized when applying the remedy of exclusion.


Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank Jan 1986

Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Unprecedential Analysis And Original Intent, William P. Marshall Jan 1986

Unprecedential Analysis And Original Intent, William P. Marshall

Faculty Publications

No abstract provided.


Reforming The Efficiency Criterion: Comments On Some Recent Suggestions, David Gray Carlson Jan 1986

Reforming The Efficiency Criterion: Comments On Some Recent Suggestions, David Gray Carlson

Articles

No abstract provided.


Historical Aspects Of Legal Interpretation, Peter Goodrich Jan 1986

Historical Aspects Of Legal Interpretation, Peter Goodrich

Articles

No abstract provided.


The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen Jan 1986

The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen

Articles by Maurer Faculty

In this Article, Professor Gjerdingen argues that the current crisis in legal scholarship can be traced to a change in the dominant concept of American law. He argues that virtually all of the significant schools of American legal thought during the last century, from Langdellian orthodoxy to realism to the legal process school, were dominated by a concept of law that separated law and politics. This concept of law, which he terms "conventionalism," presumed that law was an autonomous, apolitical discipline dominated by the study of adjudication and classical common law categories. In contrast, the new legal scholarship of the ...


Attempting The Impossible: The Emerging Consensus, Ira Robbins Jan 1986

Attempting The Impossible: The Emerging Consensus, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Impossible attempts are situations in which an actor fails to consummate a substantive crime because he is mistaken about attendant circumstances. Professor Robbins divides mistakes regarding circumstances into three categories: mistakes of fact, mistakes of law, and mistakes of mixed fact and law. Courts and commentators disagree primarily over the identification and treatment of mixed fact law cases. Professor Robbins surveys each category of mistake. He then examines the objective, subjective, and hybrid approaches to dealing with the mixed fact/law category. The objective approach requires an objective manifestation of the actor's intent before conviction is allowed. The subjective ...


The "Natural Law Tradition", John M. Finnis Jan 1986

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).