Law Commons^™

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd

School of Public Policy Working Papers

Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the …

The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason

Faculty Publications

No abstract provided.

Pragmatist And Non-Pragmatist Knowledge Practices In American Law, Mariana Valverde

Pragmatism, Law and Governmentality

For anyone interested in documenting and analyzing knowledge practices, legal arenas prove to be fruitful sites, for at least two reasons. 1) First, questions of evidence and of authority are often explicitly contested, with the contestations often forming part of a court’s public record and/or going on in the public setting of the courtroom. Thus, unlike science studies scholars, who must gain access to social interactions that are not mentioned in scientific papers and that do not take place in public view, legal studies scholars have vast amounts of material – affidavits, trial transcripts, etc– that can readily be analyzed, …

Styles Of Pragmatism, Social Science And The Law, Robert P. Burns

Pragmatism, Law and Governmentality

I have long held as an ideal the words of one of foremost American interpreters of John Dewey's philosophy: "An adequate, comprehensive political and social theory must be at once empirical, interpretive, and critical." How these styles of social inquiry, whose practitioners often seem at war, might cohere has never been completely clear. This essay is an attempt to work out in a very limited context some of the issues surrounding these relationships. In particular, I want to explore the relationship between the interpretive style, which I take to be central, and the other two. The focus of these remarks …

Due Process Erosion: The Diminution Of Live Testimony At The Icty, Megan A. Fairlie

Faculty Publications

Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live testimony. …

The Right To A Jury Decision On Questions Of Fact Under The Seventh Amendment, Paul F. Kirgis

Faculty Law Review Articles

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on 'functional considerations" in assigning a question of patent claim construction to the judge. In …

Hegel’S Theory Of Measure, David G. Carlson

Articles

The final segment in Hegel's analysis of "being" is measure - the unity of quality and quantity. At stake in these chapters is the difference between quantitative and qualitative change. A being or thing is indifferent to quantitative change, which comes from the outside. For instance, a legislature can increase the stringency of zoning regulations, and yet the legislation is still constitutional "zoning." But there comes a point at which quantitative change effects a qualitative change - zoning becomes an uncompensated "taking" of property. This paper analyzes how Hegel, in the "Science of Logic," derives measure from the categories of …

Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld

Articles

The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …

The Traumatic Dimension In Law, David G. Carlson

Articles

This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to …

Western Justice, Richard B. Collins

Publications

No abstract provided.

A Reply--The Missing Portion, Pierre Schlag

Publications

No abstract provided.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

Articles

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

All Faculty Scholarship

Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

The Unruliness Of Rules, Peter A. Alces

Faculty Publications

No abstract provided.

Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Shareholder Value And Auditor Independence, William W. Bratton

All Faculty Scholarship

This Article questions the practice of framing problems concerning auditors’ professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal’s control and cannot act independently. For the same reason, auditors’ duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

All Faculty Scholarship

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Lawyers As Prophets, Thomas L. Shaffer

Journal Articles

Legal ethics is about injustice. My effort here is part of the broad, modern academic enterprise, and of the broad, modern professional enterprise now usually called professional responsibility. Both date from the Watergate scandal in the administration of President Richard M. Nixon, and the rejection, by legal academics and practicing lawyers, of the behavior of the President and other lawyers in that affair. Our modern enterprise, like the biblical Exodus, was born in outrage at the abuse of legal power.

In university law schools such as this one, legal ethics is now a discipline characterized by schools of thought on …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

An Appreciation Of Jonathan I. Charney, Lori Fisler Damrosch

Faculty Scholarship

Jon Charney preceded me into the academic world by a dozen years and already had a well-established reputation in international law when I was a brand-new law teacher. At the time we met in 1984, Jon was tackling some of the most ambitious topics in the theory and practice of international law, and he reached out to others for collegial engagement on those subjects. From the mid-1980s, he and I worked together on three collaborative books and on many projects for the American Society of International Law and the American Journal of International Law.