Law Commons^™

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …

How To Use Philosophy, Economics And Psychology In Jurisprudence: The Case Of Paternalism In Contract Law, Peter Cserne

Péter Cserne

In this paper I discuss the conceptual and methodological background of an economic approach to paternalism in contract law. This should serve as a case study to a more general problem: the uses and abuses of inter- and multidisciplinary research in jurisprudence, i.e. the proper scope of the non-doctrinal analysis of legal issues. Freedom of contract and paternalism are concepts eminently important in legal theory. I will argue that to evaluate this importance, legal scholarship should take into account not only political philosophy but economics and cognitive psychology as well. In the complex interrelations of empirical research, theoretical models and …

Envisioning The Constitution , Thomas P. Crocker

American University Law Review

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …

"A Perfect Copy": Indian Culture And Tribal Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

A critical area of American Indian law is the resurgence, restoration, and development of tribal law in Indian Country. Some tribal law is borrowed or transplanted, while other tribal law is based on custom and tradition, but the ultimate purpose of developing a body of law that parallels Anglo-American law is the preservation of American Indian culture. Leech Lake Ojibwe David Treuer’s recent book of literary criticism, Native American Literature: A User’s Guide, offers a startling premise that reaches far beyond literature – American Indian literature that borrows from Anglo-American literary traditions is nothing more than a “copy” of Indian …

A Damn Hard Thing To Do, John H. Schlegel

Vanderbilt Law Review

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

Globalization In Comparative Perspective: A New Approach To Comparative Law And Legal Thought, Tamara Lothian, Katharina Pistor

Tamara Lothian

No abstract provided.

Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey

Book Reviews

Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).

Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.

This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley …

Toward A Third-Wave Feminist Legal Theory: Young Women, Pornography And The Praxis Of Pleasure, Bridget J. Crawford

Michigan Journal of Gender & Law

Part I of this Article explores the general themes of third-wave feminist writings. The Article begins with an overview of third-wave feminist literature and its predominant concerns. These concerns are (1) dissatisfaction with earlier feminists; (2) the multiple nature of personal identity; (3) the joy of embracing traditional feminine appearance and attributes; (4) the centrality of sexual pleasure and sexual self-awareness; (5) the obstacles to economic empowerment; and (6) the social and cultural impact of media and technology. Textual analysis reveals third-wave feminists' reliance on non-legal tools for remedying gender inequality. Although third-wave feminists acknowledge the law's role in women's …

Transparency And Determinacy In Common Law Adjudication: A Philosophical Defense Of Explanatory Economic Analysis, Jody S. Kraus

Faculty Scholarship

Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of …

Grounds Of Law And Legal Theory: A Response, John M. Finnis

Journal Articles

Linking theses of Plato, Wittgenstein and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs - theory adequately attentive to the four irreducible orders in which human persons live and act - upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness …

Rule And Exception In Criminal Law (Or, Are Criminal Defenses Necessary?), Janine Young Kim

Janine Kim