Law Commons^™

The Positive Criteria Of Legal Norms, Claudio Bozzi Dr

Claudio Bozzi Dr

With the publication of Faktizitat und Geltung Jurgen Habermas sought to extend his normative critical arguments to jurisprudence. In this work he argues that the law can mediate and coordinate valid social integration in complex modern societies because it is capable of receiving normative inputs from the public sphere, which are then translated into the administrative system. Throughout his extensive writings, Habermas has referred to a principle of the universalisation of the valid norm. Its role in pluralist societies is therefore not to offer a substantial value, but to guide in the character of a regulative idea. This idea would …

The Positive Criteria Of Legal Norms, Claudio Bozzi Dr

Claudio Bozzi Dr

This paper argues that Habermas’s principle of universalisation, which is posited not as a substantive value but a regulative idea which mediates impartially amongst a plurality of goods, fails to maintain the impartiality of the discourse. Rather, positive assumptions about goods are unavoidable entailments of a situated and historical norm. The laws’ coordinating role achieved by translating the normative inputs it receives from the public sphere and applying them to administrative purpose must be understood not as a universal consensus but in deliberative terms whereby the mediation of particular audiences is considered an element of rationality. But normativity cannot simply …

Can You Provide Evidence Of Insufficient Evidence? The Precautionary Principle At The Wto, Elisa Vecchione

Elisa Vecchione

This paper aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become entangled with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due to reasons of both legal procedures specific to the WTO dispute settlement system and the substantive nature of precautionary measures. Indeed, their foundation on “insufficient scientific evidence” dramatically complicates the question of the probative value of science for the purpose of legal adjudication and creates a seemingly contradictory situation, of which the Panel on the EC-Biotech case confirmed to be a victim: that of …

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …

The Birthright Citizenship Controversy: A Study Of Conservative Substance And Rhetoric, Allen R. Kamp

Allen R. Kamp

This essay is a critique of the conservative rhetoric used in their attack on birthright citizenship—as granted by Clause 1 of the Fourteenth Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The rhetoric of that attack violates the traditional canons of conservative argumentation and interpretation, such as original intent and plain meaning. As such, their arguments call into question the seriousness of their allegiance to these canons.

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Vlad Perju

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace

Nicholas Buccola

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …

Friendly Fire Casualties Of American Civil Liberty In The War On Terror: Humanitarian Law Project V. Holder And The Erosion Of Free Speech, Alicia C. Armstrong Esq.

Alicia C Armstrong

The holding in Humanitarian Law Project (HLP) v. Holder marks a significant shift in First Amendment doctrine, unprecedented since the early twentieth century “Red Scare” cases. The HLP decision suggests that free speech principles which have been developing for over half a century—culminating in the paramount protection of “subversive advocacy”—are less deserving of adherence in the face of terrorism than in times of relative peace. Throughout the past several decades, the Court has retreated from the notion that speech which is disturbing to public opinion but benign in its capability to incite imminent lawless action deserves lower legal protection. To …

Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert

Lauren Gilbert

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H Byrnes IV

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity. The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity by exploring the living conditions of the poor. The second half concludes with a description of the Jewish laws, Mishnah and Talmudic commentary, as well as the practice and codification of Rabbinical teaching that …

The Twentieth Century, Daniel R. Coquillette

Daniel R. Coquillette

All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training—and those events that we have actually witnessed—we allegedly lose that "objectivity" which makes the "science" of history itself possible. Certainly, there is no point in burdening the reader with the "original" materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an "historical perspective."

Incommensurability, Practices And Points Of View: Revitalizing H.La. Hart’S Practice Theory Of Rules, Eric J. Miller

Eric J. Miller

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are wholesale incommensurable with them.

Wholesale incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

Contract + Tort = Property: The Trade Secret Illustration, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

Freezing Assets In The War On Terror: Ofac And The Fourth Amendment, Rebecca Kagan Sternhell

Rebecca Kagan Sternhell

In 2001, President Bush issued Executive Order 13224 declaring a state of national emergency and triggering an array of emergency powers. Chief among these powers was the International Emergency Economic Powers Act (“IEEPA”), which permits the Treasury Department’s Office of Foreign Asset Control (“OFAC”) to freeze the assets and accounts of suspected terrorists and their affiliates. Recently OFAC has gone after U.S. charities. Three US charities filed suit alleging Fourth Amendment violations. Each organization received a different judicial determination on the Fourth Amendment question. The paper discusses these three cases and demonstrates no consensus on the Fourth Amendment issue. There …

Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel James Hornal

Daniel Hornal

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …

Innocent Until Presumed Guilty: Verdicts, Habeas Corpus Law, And Newly Discovered Evidence, Richard A. Burton Jr

Richard A Burton Jr

It may seem uncontroversial that our law should prevent the execution of an innocent person. There are ‘constitutional safeguards’ in place that maintain this principle, but these safeguards apply to pre-convicted persons – those presumed innocent – through the avoidance of wrongful conviction. Once the conviction is handed down, the safeguards fundamentally change. This is equally true for the most troubling cases in which newly discovered evidence demonstrably proves the factual innocence of a defendant but is discovered post-conviction. Despite the available evidence, such persons do not enjoy constitutional safeguards that prohibit their execution based on their factual innocence. In …

Variable Multipolarity And Un Security Council Reform, Bart M.J. Szewczyk

Bart M.J. Szewczyk

One of the fundamental international law questions over the past two decades, and an integral issue for US policy, has been the structure of the United Nations Security Council. In a world of variable multipolarity, whereby changing crises demand different combinations of actors with relevant resources and shared interests, the Council’s reform should be based not on expanded permanent membership—as mistakenly held by conventional wisdom—but on inclusive contextual participation in decision-making. The Council’s five permanent members continue to have collective resources relative to the rest of the world that are not significantly different than at the founding of the UN. …