Law Commons^™

Restoring The Right Constitution?, Eduardo M. Peñalver

Cornell Law Faculty Publications

After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In "Restoring the Lost Constitution," Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of …

Between Natural Law And Legal Positivism: Dworkin And Hegel On Legal Theory, Thom Brooks

Georgia State University Law Review

No abstract provided.

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …

The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron

Scholarly Works

No abstract provided.

Natural Law And Agency Theory, Michael Lp Lower

Michael LP Lower

Corporate governance scholarship is awash with theories of the firm: these are "stories" or metaphors that try to shed light on the nature and purpose of the firm as an institution and on one or more of the following questions:

(i) how the institution of the firm "evolved" (or its economic or social purpose); (ii) whether "the firm" is a reality or a rhetorical device; and (iii) the relationship between "the firm" and stakeholders, political society and so on.

Theories of the firm are used both to explain and to help develop law and policy. If the theory is misconceived, …

The Alien Tort Statute And The Torture Victims' Protection Act: Jurisdictional Foundations And Procedural Obstacles, Eric A. Engle

Eric A. Engle

Outlines the jurisdictional and procedural obstacles to alien tort claims and claims under the torture victims's protection act and presents solutions to them.

Regulatory Reform: The New Lochnerism?, David M. Driesen

College of Law - Faculty Scholarship

This article explores the question of whether contemporary regulatory reformers' attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value-neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications for modern regulatory reform.

Tradition And Development In The Catholic Church's Teaching On Marriage: A Response To Cardinal Trujillo, John J. Coughlin

Journal Articles

During the twentieth century, the teaching of the Roman Catholic Church on the nature of marriage remained fully faithful to ancient tradition and witnessed new developments. In his article, The Nature of Marriage and Its Various Aspects, Alfonso Cardinal Lopez Trujillo has afforded a splendid overview of both the timeless and adaptive features of the Church's teaching. In commenting on the article, I have been asked to identify obstacles to the article's reception as well as to suggest possible resolutions. My brief response to His Eminence, Cardinal Trujillo, consists of two parts. First, I suggest that an epistemological issue is …

Natural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in …

Philosopher King Courts: Is The Exercise Of Higher Law Authority Without A Higher Law Foundation Legitimate?, John C. Eastman

John C. Eastman

When our nation's Founders designed our constitutional system of government as the means to secure the inalienable rights described in the Declaration of Independence, they placed great stock in the structural provisions of the Constitution, even greater than in a judicially-enforceable bill of rights. Although they certainly envisioned judicial review, it is hard to fathom that they would have sanctioned a judiciary that decides every major (and a good number of the minor) political issue of the day. Even less clear is the ground of authority on which the modern-day court rests. This article considers several possible claims of legitimacy …