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1990

Jurisprudence

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Full-Text Articles in Law

The Obligation To Obey Law: A New Theory And An Old Problem, Tamar L. Smith Oct 1990

The Obligation To Obey Law: A New Theory And An Old Problem, Tamar L. Smith

Osgoode Hall Law Journal

Numerous theories have been developed to explain the basis, beyond a legal one, upon which the citizen's obligation to obey the law rests. In The Authority of the State, Leslie Green has contributed a new theory of obedience, one which explores the bases of civility and tolerance as foundations for obedience rendered to the legal system. This new theory is discussed within the context of a real world problem, one that has distressed the world community for years - the treatment of blacks in South Africa. Does this theory have any significance for citizens caught up in a fundamental and …


Suspect Class Democracy: A Social Theory, Thomas W. Simon Sep 1990

Suspect Class Democracy: A Social Theory, Thomas W. Simon

University of Miami Law Review

No abstract provided.


The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr. Aug 1990

The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr.

Michigan Law Review

Earlier in this the first year of the new millennium, Professor Larry Marshall was appointed Chief Justice of the United States. The first important case coming before the Marshall Court involved the government's prosecution of Frankly Amorous under the White Slave Traffic Act of June 25, 1910 (the Mann Act), as amended. Defendant Amorous was a law student in Virginia who paid for the airplane ticket of his female lover to travel from North Carolina to Virginia for the admitted purpose of having extramarital sexual relations. The U.S. Attorney prosecuted Amorous for violating the Mann Act, which criminalizes the knowing …


Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall Aug 1990

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …


Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod Jul 1990

Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod

Faculty Articles and Papers

No abstract provided.


Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson Jul 1990

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

Scholarly Works

It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …


On The Road To Radical Reform: A Critical Review Of Unger's Politics, Richard F. Devlin Jul 1990

On The Road To Radical Reform: A Critical Review Of Unger's Politics, Richard F. Devlin

Osgoode Hall Law Journal

Two aims drive this essay. The first is to provide the reader with an accessible, yet relatively comprehensive, introduction to Roberto Mangabeira Unger's social and legal theory. The second aim is to evaluate the strengths and weaknesses of Unger's most recent scholarship and to make some suggestions as to where he goes awry. In particular, the author draws several parallels between the Ungerian enterprise and that of some feminists. The central motivation of the essay is to keep the critical conversation between male radicals and feminists open. To this end, the author posits the possibility of mutually beneficial contributions.


Beyond The Warren Court And Its Conservative Critics: Toward A Unified Theory Of Constitutional Criminal Procedure, Donald A. Dripps Jun 1990

Beyond The Warren Court And Its Conservative Critics: Toward A Unified Theory Of Constitutional Criminal Procedure, Donald A. Dripps

University of Michigan Journal of Law Reform

Part I develops more fully the differences that divide liberal and conservative commentators on criminal procedure, taking special note of the series of Reports prepared by the Justice Department's Office of Legal Policy and published recently in the University of Michigan Journal of Law Reform. Part II explains my disquiet with the suggestion that original-meaning jurisprudence ought to guide criminal procedure doctrine. Part II also defends the thesis that the fourteenth amendment protects the individual interest in freedom from unjust punishment, rather than any abstract interest in truth for its own sake. Part III considers two familiar controversies in criminal …


The Truth About Massiah, James J. Tomkovicz Jun 1990

The Truth About Massiah, James J. Tomkovicz

University of Michigan Journal of Law Reform

First, the Article will summarize the Justice Department's discussion of the Massiah right to counsel and the exclusion of evidence under Massiah. Next, it will evaluate the nature of the Report and the character of legal scholarship. Finally, it will explore the substantive debate over Massiah. In that section, the Article will point out the matters on which the DOJ and I agree, will attempt to frame the fundamental questions raised by the Massiah doctrine, and will investigate potential sources of answers to those constitutional questions. Ultimately, it will provide the answers that I prefer, explaining the premises …


The Role Of International Law As A Canon Of Domestic Statutory Construction, Ralph G. Steinhardt May 1990

The Role Of International Law As A Canon Of Domestic Statutory Construction, Ralph G. Steinhardt

Vanderbilt Law Review

From the beginning of our constitutional life, the Supreme Court has articulated principles that structure the juridical relationship between international law and domestic law. These principles purportedly offer rules of decision for resolving in domestic courts the potential in-consistencies between external and internal sources of law, and they do so with the surface simplicity of axioms. Treaties, for example, cannot trump constitutional norms.' Customary international law can provide a rule of decision at least in the absence of controlling legislative or executive acts. In the case of an irreconcilable conflict between a treaty and a statute, the latter-in-time prevails. When …


Nomos And Thanatos (Part B). Feminism As Jurisgenerative Transformation, Or Resistance Through Partial Incorporation?, Richard F. Devlin May 1990

Nomos And Thanatos (Part B). Feminism As Jurisgenerative Transformation, Or Resistance Through Partial Incorporation?, Richard F. Devlin

Dalhousie Law Journal

In Part A of this essay, "The Killing Fields", I developed a critique of the disciplinary impulses that underlie modern law and legal theory. Invoking a number of perspectives and a plurality of analyses, I proposed that male-stream legal theory and contemporary law both assume as inevitable, and legitimize as appropriate, the funnelling of violence through law. The problem with a funnel, however, is that it does not curtail or reduce that which is channelled through it. On the contrary, to funnel is to condense and to intensify. Viewed from this perspective, interpreted from the bottom up, law and legal …


Evolutionary Jurisprudence: Prospects And Limitations On The Use Of Modern Darwinism Throughout The Legal Process, Steven Kasten May 1990

Evolutionary Jurisprudence: Prospects And Limitations On The Use Of Modern Darwinism Throughout The Legal Process, Steven Kasten

Michigan Law Review

A Review of Evolutionary Jurisprudence: Prospects and Limitations on the Use of Modern Darwinism Throughout the Legal Process by John H. Beckstrom


Democracy And Its Critics, Cary Coglianese May 1990

Democracy And Its Critics, Cary Coglianese

All Faculty Scholarship

No abstract provided.


Of Persons And Property: The Politics Of Legal Taxonomy, David Cohen, Allan C. Hutchinson May 1990

Of Persons And Property: The Politics Of Legal Taxonomy, David Cohen, Allan C. Hutchinson

Dalhousie Law Journal

To talk of law without politics or history is nonsensical. All lawyers must concede that what they do takes place in historical circumstances and has political consequences. Every piece of law-making and law-application is a governmental act; it relies on political authority and claims binding force. Moreover, all legal activity occurs within a particular historical context; it is intended to respond to or influence a past, existing or anticipated state of affairs. This means that the study of law must concern itself with politics and history generally: it must not confine itself to only the politics and history of law. …


Retrieving Positivism: Law As Bibliolatry, Frederick C. Decoste May 1990

Retrieving Positivism: Law As Bibliolatry, Frederick C. Decoste

Dalhousie Law Journal

Legal positivism is a curious phenomenon in both its theoretical and sociological parts. It is curious as theory because its very existence, as theory, is often questioned, and because, even when its existence is admitted, the nature of the theory, and who does and does not qualify as an adherent most often remains in dispute. It is curious sociologically because rare is the legal theoretician who forthrightly endorses positivism: positivists, it would appear, are as scarce as the formalists among whom they used to be numbered.


Rawls On Political Community And Principles Of Justice, James W. Nickel May 1990

Rawls On Political Community And Principles Of Justice, James W. Nickel

Articles

No abstract provided.


History's Challenge To Feminism, Jeanne L. Schroeder May 1990

History's Challenge To Feminism, Jeanne L. Schroeder

Michigan Law Review

A Review of Law, Sex, and Christian Society in Medieval Europe by James A. Brundage


The Hohfeldian Approach To Law And Semiotics, J. M. Balkin May 1990

The Hohfeldian Approach To Law And Semiotics, J. M. Balkin

University of Miami Law Review

No abstract provided.


Judicial Discretion: Is One More Of A Good Thing Too Much?, David B. Sentelle May 1990

Judicial Discretion: Is One More Of A Good Thing Too Much?, David B. Sentelle

Michigan Law Review

A Review of Judicial Discretion by Aharon Barak


Original Intent: "With Friends Like These…", Thomas Gibbs Gee May 1990

Original Intent: "With Friends Like These…", Thomas Gibbs Gee

Michigan Law Review

A Review of Original Intent and the Framer's Constitution by Leonard W. Levy


Sociological Justice, Christopher M. Adams May 1990

Sociological Justice, Christopher M. Adams

Michigan Law Review

A Review of Sociological Justice by Donald Black


Contracts—The Trend Toward Legal Realism. Shearson Lehman Cmo, Inc. V. Tcf Banking & Savings And Teachers Insurance & Annuity Association V. Tribune Co., 670 F. Supp. 491 (S.D.N.Y. 1987)., Janne G. Siegel Apr 1990

Contracts—The Trend Toward Legal Realism. Shearson Lehman Cmo, Inc. V. Tcf Banking & Savings And Teachers Insurance & Annuity Association V. Tribune Co., 670 F. Supp. 491 (S.D.N.Y. 1987)., Janne G. Siegel

University of Arkansas at Little Rock Law Review

No abstract provided.


Stare Decisis And Judicial Restraint, Lewis F. Powell, Jr. Mar 1990

Stare Decisis And Judicial Restraint, Lewis F. Powell, Jr.

Washington and Lee Law Review

No abstract provided.


Corrective Justice From Aristotle To Second Order Liability: Who Should Pay When The Culpable Cannot?, Kathryn R. Heidt Mar 1990

Corrective Justice From Aristotle To Second Order Liability: Who Should Pay When The Culpable Cannot?, Kathryn R. Heidt

Washington and Lee Law Review

No abstract provided.


Progressive And Conservative Constitutionalism, Robin West Feb 1990

Progressive And Conservative Constitutionalism, Robin West

Michigan Law Review

The article's central thesis is that the understandings of the constitutional tradition most central to both paradigms are determined by sometimes implicit, but more often explicit, political dispositions toward various forms of social and private power, and the normative authority to which social and private power gives rise. Very broadly, conservative constitutionalists view private or social normative authority as the legitimate and best source of guidance for state action; accordingly, they view both the Constitution and constitutional adjudication as means of preserving and protecting that authority and the power that undergirds it against either legislative or judicial encroachment. Progressive constitutionalists, …


The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg Jan 1990

The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.


The Corporate Personality In American Law: A Summary Review, Phillip Blumberg Jan 1990

The Corporate Personality In American Law: A Summary Review, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.


The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz Jan 1990

The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.


A Brief Argument For Greater Control Of Litigation Discretion - The Public Interest And Public Choice Contexts, 23 J. Marshall L. Rev. 215 (1990), Walter J. Kendall Iii Jan 1990

A Brief Argument For Greater Control Of Litigation Discretion - The Public Interest And Public Choice Contexts, 23 J. Marshall L. Rev. 215 (1990), Walter J. Kendall Iii

UIC Law Review

No abstract provided.


On The Steadfastness And Courage Of Government Lawyers, 23 J. Marshall L. Rev. 165 (1990), Roger C. Cramton Jan 1990

On The Steadfastness And Courage Of Government Lawyers, 23 J. Marshall L. Rev. 165 (1990), Roger C. Cramton

UIC Law Review

No abstract provided.