Law Commons^™

The Principles Of Justice, In Symposium, Propter Honoris Respectum: John Finnis, Richard W. Wright

All Faculty Scholarship

Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive …

Concurring In Result Without Written Opinion: A Condemnable Practice, Ira Robbins

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

Legal Institutions In Professor H.L.A. Hart's Concept Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Christians And The Military, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Empirical Methods And The Law, Theodore Eisenberg

Cornell Law Faculty Publications

One can divide empirical analysis of legal issues into three major branches: (1) the use of scientific empirical analysis by litigants to attempt to prevail in individual cases, (2) the use of social scientific empirical analysis in individual cases, and (3) the use of the empirical methods to describe the legal system’s operation. The first two uses present difficulties that reflect a fundamental limitation on using statistical methods in law: the difference between establishing statistical association and establishing actual causation in an individual case filtered through our adversary legal system. The third use encounters no such obstacle and can aid …

Gender And Privacy In Cyberspace, Anita L. Allen

All Faculty Scholarship

No abstract provided.

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Making Room For Critical Race Theory In International Law: Some Practical Pointers, Penelope Andrews

Articles & Chapters

In addition to assessing the pertinence of critical race theory in unmasking international law's colonial, racist and patriarchal underpinnings, this paper attempts to suggest practical ways in which a critical race theoryapproach can enrich the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.

This paper will do three things. First, it will peruse the contemporary global situation with respect to international law and human rights. Second, it will assess the contribution of critical race theory in advancing an understanding of, and solution …

Preliminary Thoughts On The Virtues Of Passive Dialogue, Michael Heise

Cornell Law Faculty Publications

The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this …

Connecting Grounds Of Discrimination To Real People's Real Experiences, Dianne Pothier

Dianne Pothier Collection

From the outset, the prevailing approach to human rights statutes in Canada has been predicated on a closed list of prohibited grounds of discrimination. The early drafts of s. 15 of the Canadian Charter of Rights and Freedoms likewise had a closed list of enumerated grounds, but the final version qualifies those grounds as "in particular", opening the door for a broader application of s. 15. Nonetheless, the Supreme Court of Canada, with the exception of Justice L'Heureux-Dube, has insisted that establishing a prohibited ground, either enumerated or analogous, is a requisite condition to a s. 15 breach. In the …

Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison

Scholarly Articles

Not available.

Critical Race Theory And Postcolonial Development Theory: Observations On Methodology, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Baccauaureate Mass Reflection: The Catholic Lawyer: Justice And The Incarnation, John M. Breen

Faculty Publications & Other Works

No abstract provided.

What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses

Faculty Publications & Other Works

No abstract provided.

The Inefficiency Of Mens Rea, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

Playing On Words: Judge Richard A. Posner's Appellate Opinions, 1981-82--Ruminations On Sexy Judicial Opinion Style During An Extraordinary Rookie Season, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This paper examines the seeming contrast between the legal doctrines that the interpretation of statutes can evolve over time and that the interpretation of statutes must be grounded only in their texts, which never change unless amended by Congress. That examination is illuminated by complexity and meme theories. The examination is concluded by applying both doctrines and theories to the question of whether the term “navigable water” in a water pollution control statute includes underground water.

Afterword And Response: What Digging Does And Does Not Do, Patricia D. White

Articles

No abstract provided.

Thoughts On Some Potential Appellate And Trial Court Applications Of Therapeutic Jurisprudence, Steve Leben

Faculty Works

To date, the application of therapeutic jurisprudence principles has been concentrated mainly on specialized trial courts: drug treat­ment courts, domestic violence courts, criminal courts, and juvenile and family courts. Its application to trial courts generally, as well as its application to the appellate courts, remains largely unexplored. This Article considers three areas in which trial and appellate courts may want to consider applying therapeutic jurisprudence.

My conclusions about the application of therapeutic jurispru­dence to the appellate courts are admittedly tentative ones: my day job is sitting as a state general jurisdiction trial judge, not as an appel­late court judge. Although …

The Pursuit Of The Hunt, Interrupted: Changing Literary Image Of Law, William J. Wagner

Scholarly Articles

In the course of reaching its substantive conclusions, this article seeks to shed light on the theoretical and methodological requisites of a valid and fruitful application of literary sources in jurisprudence.

The article begins by explicating the original literary image of the pursuit of the hunt interrupted, within its thematic setting in Aeschylus. It then offers theoretical and methodological postulates for drawing out the fuller meaning for law and legal studies of the image. It explores variations on the same pattern of imagery in subsequent works of Western literature, and offers reflections on how these variations can enrich our understanding …

Foreword: Is Justice Just Us?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Psychotherapeutic Practice As A Model For Postmodern Legal Theory, Francis J. Mootz Iii

Scholarly Works

Critical legal theory is in need of reconstruction and rehabilitation. By most accounts, the goal of critical legal theory is to reveal the deep structure of the legal system that remains unrecognized in, and even obscured by, the self-understanding of legal actors. Scholars traditionally moved beyond the superficial level of legal doctrine either by adopting a rationalistic orientation and analyzing legal concepts or by adopting an empiricist orientation and analyzing the economic and sociological features of legal institutions. However, during the past thirty years there has been a tremendous diversification in these critical approaches. For example, the critical legal studies …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Scholarly Works

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

Scholarly Works

No abstract provided.

The Index Of Individual Case Reports Of The Inter-American Commmission On Human Rights: 1994-1999, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Resolving Tensions Between Copyright And The Internet, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.