Law Commons^™

Chinese Judicial Pattern: Tradition And Reform(中国的司法模式：传统与改革), Meng Hou

Hou Meng

No abstract provided.

Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Based upon a political compromise, in which « democratic socialists » and « social democrats » were the main protagonists, the ideology of Portuguese Constitution of 1976 was discrete, subtle. And ulterior constitutional revisions confirmed that fondamental aspect. Of course, utopia was present. But, even more present was the « hope principle ». We believe that the Brazilean constituent assembly, with the original importance of popular contributions, also had hope principle’s decisive influence. But the dinamics of the constituent assembly moderated, since the very beggining, the verbal signs of less discret ideologies. Utopia, neverthless, is very present in the aim …

Szerződésértelmezés Hermeneutika És Jogpolitika Között. A Contra Proferentem Szabály [Contract Interpretation Between Hermeneutics And Policy: The Contra Proferentem Rule], Péter Cserne

Péter Cserne

This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)

The Nebraska State Constitution: A Reference Guide (2d Ed. 2009): Table Of Cases, Anthony B. Schutz

Nebraska State Constitution

No abstract provided.

Judicial Declaration Of Public Policy, Ruggero J. Aldisert

The Journal of Appellate Practice and Process

No abstract provided.

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Understanding Pleading Doctrine, A. Benjamin Spencer

Michigan Law Review

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief' by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Teoria Unificada Da Colusão: Uma Sugestão De Regulação Dos, Ivo T. Gico

Ivo Teixeira Gico Jr.

A legislação concorrencial brasileira caracteriza toda e qualquer forma de abuso do poder econômico como uma infração à ordem econômica. A principal conduta delitiva é a formação de cartel. A maior dificuldade na implementação de uma política pública contrária à cartelização dos mercados é a caracterização jurídica de um acordo entre concorrentes, principalmente, no contexto oligopolístico. Nossa hipótese é a seguinte: se a lei brasileira não exige a presença de um acordo para a caracterização do delito administrativo, deveria ser juridicamente possível condenar a coordenação indevida de ações entre concorrentes mesmo na ausência de acordo. Não obstante, como a colusão …

Justice In Time, Robert C. Hockett

Cornell Law Faculty Publications

Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future.

This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …

Colpa E Legge Fra Oriente E Occidente, Pier Giuseppe Monateri

Pier Giuseppe Monateri

The Fault and the Law between East and West. In this article Monateri traces an unpreviewed parallel between two absolutely western paradigms and two remarkably chinese thoughts. First a parallel between Carl Schmitt and Xun Zi when the latter writes that “The superior man is the source of the Law” Secondo economic analysis and Lao Zi theory of law a san emerging order not a predetermined one.

Análisis Del Conflicto Entre Derechos De Distinto Contenido Que Recaen Sobre Un Mismo Bien Inmueble Inscrito. En Búsqueda De La Ratio Legis Del Segundo Párrafo Del Artículo 2022 Del Código Civil, Jimmy J. Ronquillo Pascual

Jimmy J. Ronquillo Pascual

Continuando con el análisis del confl icto entre la propiedad no inscrita y el embargo, el autor en la segunda parte de su investigación plantea válidos argumentos debidamente fundamentados en reconocida doctrina para proponer una solución al conflicto: los derechos de créditos previamente inscritos prevalecerán por sobre los derechos reales no inscritos. La seguridad jurídica así como el criterio dirimente otorgado al registro, son dos de los argumentos que plantea el autor para sustentar su propuesta. Sin lugar a dudas, es un interesante estudio digno de ser revisado.

Lewis F. Powell Lecture, Carter G. Phillips

Washington and Lee Law Review

No abstract provided.

Future Generations: A Prioritarian View, Matthew D. Adler

All Faculty Scholarship

Should we remain neutral between our interests and those of future generations? Or are we ethically permitted or even required to depart from neutrality and engage in some measure of intergenerational discounting? This Article addresses the problem of intergenerational discounting by drawing on two different intellectual traditions: the social welfare function (“SWF”) tradition in welfare economics, and scholarship on “prioritarianism” in moral philosophy. Unlike utilitarians, prioritarians are sensitive to the distribution of well-being. They give greater weight to well-being changes affecting worse-off individuals. Prioritarianism can be captured, formally, through an SWF which sums a concave transformation of individual utility, rather …

Re-Examining Investor Protection In The Eu And Us, John Ja Burke

John JA Burke

The year 2009 is a propitious time to evaluate systems of investor protection in financial markets as global bank losses exceed the 1 trillion mark and market losses equally exceed the 1 trillion mark. Prior to the Global Financial Crisis, the European Union enacted sweeping legislation to reform its system of investor protection. The Markets in Financial Instruments Directive [MiFID] is the regulatory equivalent of the deregulatory 1987 “Big Bang” that shaped the current European financial markets. It also applies to one of the world’s largest trading regions. This article examines select investor protection provisions of MiFID and their analogues …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

David C. Gray

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

David C. Gray

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

The Legal And Practical Aspects Of Atm's In Tanzania, Daudi Mwita Nyamaka Mr.

Daudi Mwita Nyamaka Mr.

The concern of our study was to examine the legal and practical aspects of ATMs in Tanzania. The major problems that were being examined are; the 24 hours operation on ATMs vis-à-vis system failure or error and the system of one bank allowing cardholders of another bank to use its ATMs. With the first problem, all banks in Tanzania with ATMs have attractive advertisements to customers that affirm sufficient services in any time of the day but in reality, the machines usually fail to respond the instructions of the cardholder regardless the fact that the cardholder inserts the card and …

Law Journals Of Cssci: Which One Is More Influential In Knowledge Production（Cssci法学期刊──谁更有知识影响力）, Meng Hou

Hou Meng

No abstract provided.

'From Savigny Through Sir Henry Maine': Roscoe Pound’S Flawed Portrait Of James Coolidge Carter’S Historical Jurisprudence, Lewis A. Grossman

Working Papers

In Roscoe Pound's scathing 1909 review of Law: Its Origin, Growth and Function, American jurist James Coolidge Carter's magnum opus, Pound asserted that Carter's conception of law "comes from Savigny through Sir Henry Maine." Frederich Karl von Savigny and Sir Henry Maine were the most prominent representatives of the German and English historical schools of jurisprudence, respectively. For his part, Carter was the leading representative of historical jurisprudence in the United States.

Other scholars, following Pound, have similarly linked Carter to Savigny and Maine, especially to the former. Moreover, various authors have noted the great effect these European jurists had …

Is There Law In Heaven?, Amelia J. Uelmen

Amelia J Uelmen

No abstract provided.

O Que É Uma Universidade?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Pouca gente sabe hoje o que é uma Universidade, a sério. Confunde-se muito Universidade e super-mercado de aulas, ou fábrica de « investigação » ou « pesquisa », assim como se confunde serviço público com negócio, vocação com interesse pessoal, etc. É a própria essência da Universidade que está em causa. A confusão é grande no público, que vê a Universidade sobretudo como uma forma de promoção social, pelos diplomas. A confusão não é menor na própria Universidade. Os universitários mais responsáveis interrogam-se sobre a sua função, o sentido do trabalho que fizeram e fazem, e a sua sorte na …

Inheritance Law, Marcis Liors Skadmanis

Marcis Liors Skadmanis Mr.

Latvia's inheritance laws affect everyone who owns property in Latvia. The main laws are: The Constitution of the Republic of Latvia, Civil Law, Notary law; Civil Procedure Law; Law On Orphan's Courts; Land Register Law and Immigration Law and acts of the Cabinet of Ministers.

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

Scholarly Works

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …

Juristocracy In The Trenches: Problem-Solving Judges And The Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard C. Boldt, Jana B. Singer

Jana B. Singer

This article explores the role of judges on two types of “problem-solving courts”: drug treatment courts and unified family courts. It compares the behavior these “problem-solving” judges to more traditional models of judicial behavior and to activist judging at the appellate level. The authors conclude that the judges who serve on these problem-solving courts have largely repudiated the classical judicial virtues of restraint, disinterest and modesty in favor of a more activist and therapeutic stance. However, the causes and consequences of this role-shift are complex. In particular, the authors suggest that the proliferation of problem solving courts and judges is …

Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud

North Carolina Central Law Review

No abstract provided.

Why Paretians Can’T Prescribe: Preferences, Principles, And Imperatives In Law And Policy, Robert C. Hockett

Cornell Law Faculty Publications

Recent years have witnessed two linked revivals in the legal academy. The first is renewed interest in articulating a normative “master principle” by which legal rules might be evaluated. The second is renewed interest in the prospect that a variant of Benthamite “utility” might serve as the requisite touchstone. One influential such variant now in circulation is what the Article calls “Paretian welfarism.”

This Article rejects Paretian welfarism and advocates an alternative it calls “fair welfare.” It does so because Paretian welfarism is inconsistent with ethical, social, and legal prescription, while fair welfare is what we have been groping for …

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law Review

n Gonzales v. Carhart the Supreme Court invoked post- abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about emotions. A species of common sense, it seems obvious and universal to …

Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did …