Law Commons^™

Jus Cogens: Guarding Interests Fundamental To International Society, Gordon A. Christenson

Faculty Articles and Other Publications

The following sections attempt to analyze the concealed uses of the concept jus cogens and to offer an interpretation of its possibilities and dangers for a future world order. First, the inquiry is framed by introducing criteria for peremptory norms, the theme of dual formalism, and the problematic analogy to public order in municipal law. A review of the concept's contemporary development follows. The inquiry then explores ideological conflict and some questions of content, including two recent decisions against the United States. The final section revisits the myth of supernorms, including the problem of dissonance with ordinary norms, incommensurability of …

Must Virtue Be Taught?, Thomas D. Eisele

Faculty Articles and Other Publications

No abstract provided.

The Second Circuit's Approach To The "In Connection With" Requirement Of Rule 10b-5, Barbara Black

Faculty Articles and Other Publications

This Commentary examines the evolution of the "in connection with" requirement within the Second Circuit, focusing on cases decided in the 1985-86 term. It attempts to illustrate the direction the Circuit has taken in dealing with complex issues of securities fraud.

The Activity Of Being A Lawyer: The Imaginative Pursuit Of Implications And Possibilities, Thomas D. Eisele

Faculty Articles and Other Publications

If law as an activity emerged naively and unpremeditated, as a direction of attention pursued without premonition of what it would lead to, then by now it has hollowed out a character for itself, as Oakeshott says, and has become specified in a "practice." Having acquired this firmness of character, as Oakeshott further says, law may present itself as a puzzle, thus provoking reflection. Thinking about law in this manner or mood is something that I wish to call "philosophy of law," and this is itself an honorable activity with a character and mannerisms of its own.2 In law school, …

Do The United States Sentencing Guidelines Deprive Defendants Of Due Process?, Bradford Mank

Faculty Articles and Other Publications

It is difficult to determine whether due process requires individualized sentencing because sentencing goals and practices have varied greatly during the course of this nation's history. A court applying Judge Bork's original intent doctrine of constitutional interpretation would probably reach a result different from that reached by a court employing a more liberal view of due process protections.1o It is likely that liberals and conservatives on the current Supreme Court would disagree on whether the Guidelines violate due process.

This article argues that the Guidelines can be saved and can satisfy due process requirements if the Supreme Court interprets the …

The Scope Of Criminal Restitution: Awarding Unliquidated Damages In Sentencing Hearings, Bradford Mank

Faculty Articles and Other Publications

During the past several years a variety of victim groups have forced the criminal justice system to pay more attention to the restitution needs of victims! Criminal courts, however, are still limited in the types of restitution they may award. Typically, sentencing judges can award restitution for the whole range of liquidated damages including the value of stolen or destroyed property, medical expenses, and lost past wages. In most jurisdictions, however, criminal courts cannot award restitution for unliquidated damages involving compensation for pain and suffering, or for lost future earning capacity. Crime victims must initiate a civil suit at their …