Law Commons^™

Positivism And Antipositivism In Federal Courts Law, Michael Wells

Scholarly Works

What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law …

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

The Alleged Unaccountability Of The Academic: A Biographical Sketch Of Carl Schmitt, Manfred H. Wiegandt

Cardozo Law Review

In recent years, especially after the breakdown of the Soviet bloc, we have witnessed numerous attempts to establish viable democratic structures in states formerly in the tight grip of dictatorially ruling elites, be it in the countries of the former Communist bloc, at the African Cape, or in Latin America. The questions that concern people in these regions above all are how their systems can be made strong enough to survive the economic crises that go along with establishing democratic frameworks and how the states can ensure the necessary coherence to survive on the background of a lingering challenge by …

Beyond Gender: Peremptory Challenges And The Roles Of The Jury, Nancy S. Marder

All Faculty Scholarship

No abstract provided.

Non-Delegation Doctrine And The Florida Supreme Court: What You See Is Not What You Get, John E. Fennelly

St. Thomas Law Review

In 1979, Carl J. Peckingbaugh, in analyzing Askew v. Cross Key Waterways, observed that Florida appellate courts continue "to adhere to the non-delegation doctrine." Peckingbaugh characterized the Florida Supreme Court's attitude as a rejection of the modem trend in administrative law, a trend that accepted "the adequacy of procedural safeguards in the administrative process in lieu of strict legislative guidelines for the exercise of delegated authority." Eleven years later, Professor Johnny C. Burris argued that Florida appellate courts, while still ritualistically adhering to the traditional or strict non-delegation doctrine, had de facto adopted the modem or pragmatic Davis-test that had …

Remarks: Professionalism And The Courts, Ursula Ungaro-Benages

St. Thomas Law Review

No abstract provided.

Eye On Justice, Roger J. Miner '56

Legal History

No abstract provided.

Federalization: A Critical Overview, William P. Marshall

Faculty Publications

No abstract provided.

Dunwody Distinguished Lecture In Law: The Values Of Federalism, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Reporter’S Draft For The Working Group On Principles To Use When Considering The Federalization Of Criminal Law, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Too Many And Yet Too Few: New Principles To Define The Proper Limits For Federal Criminal Jurisdiction, Sara Sun Beale

Faculty Scholarship

No abstract provided.

United States V. Gaudin: A Decision With Material Impact, Jeffrey Saks

Fordham Law Review

No abstract provided.

What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser

Publications

No abstract provided.

Alternative Dispute Resolution Mechanisms: Experience In The United States, Whitmore Gray

Other Publications

The objective of this portion of our conference on judicial reform is to discuss means to promote swift and fair resolution of disputes. Although much of our discussion will center on reform of basic court systems and civil procedure in various countries, my particular focus is on alternatives to traditional institutions and techniques. These alternatives include a variety of what we might call "courtannexed" procedures, that is, procedures that occur during the course of traditional litigation. I will also consider, however, other procedures that might better be characterized as purely "private" techniques for resolving disputes—those that occur before or at …

Busting The Hart & Wechsler Paradigm, Michael L. Wells

Scholarly Works

Federal Courts law was once a vibrant area of scholarship and an essential course for intellectually ambitious students. Now its prestige has diminished so much that scholars debate its future in a recent issue of the Vanderbilt Law Review, where even one of its champions calls it (albeit in the subjunctive mood) a “scholarly backwater.” What, if anything, went wrong, and what should Federal Courts scholars do about it? In his contribution to the Vanderbilt symposium, Richard Fallon defends the reigning model of Federal Courts law, an approach to jurisdictional issues that dates from the publication in 1953 of Henry …

1995-96 Supreme Court Preview: Mock Arguments In Romer V. Evans, Michael J. Gerhardt, Tracey Maclin

Faculty Publications

No abstract provided.

Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Grand Jury

Touro Law Review

No abstract provided.

"Mixture Or Substance": Continuing Disparity Under The Federal Sentencing Guidelines Section 2d1.1, Eric J. Stockel

Touro Law Review

No abstract provided.

General Legislation, E. D'Angelo, S. Barrow

California Regulatory Law Reporter

No abstract provided.

Sedition In Nova Scotia: R. V. Wilkie (1820) And The Incontestable Illegality Of Seditious Libel Before R. V. Howe (1835), Barry Cahill

Dalhousie Law Journal

Given its primacy and exceptionality in the Nova Scotian context, Wilkie both exemplifies the judiciary's role in official repression, and instantiates the importance of what Wright calls "the ideological mechanisms of the criminal law" in prescribing the outer limits of legitimate political discourse. This paper examines the first known use by the government of Nova Scotia of the eighteenth-century, judicially-invented misdemeanour of seditious libel in order to silence and punish criticism of the ruling eite. As Nova Scotia had neither indigenous caselaw, nor statutory legislation to supplement and reinforce the common law offence-Upper Canada's SeditionAct (1804) was still in full …

Proportionality As A Guiding Principle In Young Offender Dispositions, Paul Riley

Dalhousie Law Journal

Sentencing is traditionally regarded as one of the most difficult and challenging functions of the criminal justice system. In arriving at the appropriate sanction to be imposed upon an offender, a court must reconcile the principles and objectives of the criminal law with the criminal act committed, the circumstances surrounding its commission, and the character of the offender who committed it. The court must, with the guidance of a few abstract, broadly philosophical, and often contradictory principles of sentencing, decide upon a sanction which is appropriate in the very concrete and factually specific case within which it is presented. This …

The Revival Of Tort Theory In Canada, Jamie Cassels

Dalhousie Law Journal

Tort scholarship in Canada has not traditionally been preoccupied with theory. Apart from several fine (doctrinally oriented) texts, by far the greatest amount of tort writing found in the journals is ad hoc and responsive to current is sues. It consists for the most part of case comments or 'recent development' articles inspired by important decisions from higher courts. Beyond this, a number of substantive topics and problem areas have recently been dealt with in some detail. There is alarge amount of literature, for example, on the liability of public authorities and professionals, sporting injuries, asbestos and environmental liability, and …

The Utah Wilderness Debate (Or Is That Debacle), Jeffrey W. Appel

Who Governs the Public Lands: Washington? The West? The Community? (September 28-30)

95 pages (includes illustrations and maps).

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

General Legislation, S. Barrow, E. D'Angelo

California Regulatory Law Reporter

No abstract provided.

The Partial Republican, John O. Mcginnis

Articles

No abstract provided.

Agenda: Regulatory Takings And Resources: What Are The Constitutional Limits?, University Of Colorado Boulder. Natural Resources Law Center, Byron R. White Center For The Study Of American Constitutional Law

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

Sponsored by the University of Colorado's Natural Resources Law Center and the Byron R. White Center for American Constitutional Study.

Conference organizers, faculty and/or moderators included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Gene R. Nichol, Jr. and Mark Squillace.

Governmental regulation for environmental protection and other important public purposes can affect the manner in which land and natural resources are developed and used. The U.S. constitution (and most state constitutions) prohibit the government from "taking" property without payment of compensation. Originally intended to apply to situations where the government physically seized private property …

Social Welfare And Section 7 Of The Charter: Conrad V. Halifax (County Of), Teresa Scassa

Dalhousie Law Journal

The recent case of Conrad v. Halifax (County of) arose as as. 7 Charter challenge to the County regarding the manner in which the plaintiff was treated as a recipient of municipal social assistance. The case raises a number of interesting issues at the intersection of the Charter and administrative law including the scope of the right to "security of the person"; the scope of the principles of fundamental justice; issues of access to justice and the Charter; and the relationship between the finding of a Charter right and the treatment of the plaintiff in the fact-finding process. This case …

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.