Law Commons^™

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

All Faculty Scholarship

This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that …

Do We Have A Right To Common Goods?, Andrei Marmor

Cornell Law Faculty Publications

Individuals have rights. I will assume that this means that individuals have interests which are important enough to justify the imposition of duties on others in order to secure those interests. Groups of individuals, such as nations or ethnic minorities, plausibly have rights as well. Groups of individuals may have group interests appropriately protected by the imposition of duties on others, typically, on governments, or on other larger political entities. My concern in this essay is with the question of what individuals or groups may have a right to. In particular I want to explore the question of whether people …

Democratic Justice In Transition, Marion Smiley

Michigan Law Review

Ruti Teitel's Transitional Justice and Ian Shapiro's Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about …

Where Is My Body? Stanley Fish's Long Goodbye To Law, Richard Delgado

Michigan Law Review

Stanley Fish, author of Doing What Comes Naturally, Is There a Text in This Class?, There's No Such Thing as Free Speech, and It's a Good Thing, Too, and other paradigm-shifting books, and who recently left law teaching for a position in university administration, has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or …

Dna: Lessons From The Past - Problems For The Future - Introduction, Bailey Kuklin, Margaret A. Berger

Faculty Scholarship

No abstract provided.

The Justification For Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

It's Conflict All The Way Down, Michael Fischl

Faculty Articles and Papers

No abstract provided.

Making The Familiar Conventional Again, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

Finding A Sense Of Self In The World: A Process For Overcoming Personal And Collective Alienation After Institutional Abuse, Seetal Kaur Sunga

LLM Theses

The author examines three aspects of dispute resolution involving cases of physical and sexual abuse in institutions and other environments. She focuses on judicial and alternative processes that deal with identity formation, empowerment and monetary compensation. She argues that sexual abuse and physical abuse create specific harms to the identity and power of abused persons. These harms should be addressed through a process that can allow for identity-formation and re-configuration of the power relationship between the parties. The author concludes that judicial processes recognize identity formation that occurs outside the legal arena, and are capable of recognizing the power of …

Why Do People Support Capital Punishment? The Death Penalty As Community Ritual, 33 Conn. L. Rev. 765 (2001), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Why Miranda Does Not Prevent Confessions: Some Lessons From Albert Camus, Arthur Miller And Oprah Winfrey, 51 Syracuse L. Rev. 863 (2001), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Mr. Carroll’S Mental State Or What Is Meant By Intent, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Paradoxes Of Fair Division, Paul H. Edelman, Steven J. Brams, Peter C. Fishburn

Vanderbilt Law School Faculty Publications

Paradoxes, if they do not define a field, render its problems intriguing and often perplexing, especially insofar as the paradoxes remain unresolved. Voting theory, for example, has been greatly stimulated by the Condorcet paradox, which is the discovery by the Marquis de Condorcet that there may be no alternative that is preferred by a majority to every other alternative, producing so-called cyclical majorities. Its modern extension and generalization is Arrow's theorem, which says, roughly speaking, that a certain set of reasonable conditions for aggregating individuals' preferences into some social choice are inconsistent. In the last fifty years, hundreds of books …

Meaning, Intention, And The Hearsay Rule., Paul F. Kirgis

Faculty Law Review Articles

In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives.' By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language.5 Pragmatics thus has obvious utility for the study of hearsay.

The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran

Journal Articles

Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity. For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there …

Uni-State Lawyers And Multinational Practice: Dealing With International, Transnational, And Foreign Law, Ronald A. Brand

Articles

This article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part II examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma …

State Accountability For Violations Of Intellectual Property Rights: How To "Fix" Florida Prepaid (And How Not To), Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Reflections On When "We, The People" Kill, 34 J. Marshall L. Rev. 713 (2001), Michael P. Seng

UIC Law Review

No abstract provided.

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Articles

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. …

The Methodological Commitments Of Contemporary Contract Theory, Jody S. Kraus

Faculty Scholarship

Autonomy and economic theories of contract seem to provide incompatible accounts of contract law. In this Chapter, I argue that what appear to be first-order disagreements over particular contract doctrines are really implicit second-order disagreements reflecting the divergent methodological commitments of autonomy and economic theories. I argue that autonomy theories accord priority to the normative project of justifying existing contract doctrine, treat contract law as consisting in the plain meaning of doctrine, require contract theory to explain the distinctive character of contract law, and take the ex post perspective in adjudication. In contrast, economic theories accord priority to the positive …

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline – there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the …