Law Commons^™

Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper

LLM Theses

This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.

Populist Constitutions, David Landau

Scholarly Publications

This Essay draws on recent academic definitions of populism and recent examples of its use in order to show that there is an affinity between populism and widespread constitutional change. It argues that populists use constitutional change to carry out three functions: deconstructing the old institutional order, developing a substantive project rooted in a critique of that order, and consolidating power in the hands of populists. Thus, access to the tools of constitutional change may accentuate both the promise of populism as a corrective to stagnating liberal democracies and the threat that it poses to those constitutional orders. I also …

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David Caudill

David S Caudill

No abstract provided.

Reconciling Liberty And Equality In The Debate Over Preimplantation Genetic Diagnosis, Jessica Knouse

Jessica A. Knouse

This article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over non-therapeutic preimplantation genetic diagnosis (PGD) as an example. While PGD is, at present, almost entirely unregulated within the United States, there seems to be relative consensus that “therapeutic” or “medical” trait selection – e.g., selection against certain genetic and chromosomal disorders – should per permitted. There is, however, substantial disagreement as to whether “non-therapeutic” trait selection – e.g., selection based on parental preference for a particular sex, disability, eye color, hair color, or skin …

These Rules Are Made To Be Broken Down: Teaching Students The Art Of Deconstructing Rules Of Law, Jeremiah A. Ho

Jeremiah A Ho

ABSTRACT

THESE RULES ARE MADE TO BE BROKEN DOWN: TEACHING STUDENTS THE ART OF DECONSTRUCTING RULES OF LAW

JEREMIAH A. HO

Despite its often contended (and oft-contentious) meanings, legal academics and educators still resort to the now-entrenched phrase,“think like a lawyer,” to describe the goal of law schools in educating their students. But even a brief deconstruction of the phrase brings its varied interpretations to light: What does it mean to “think like a lawyer”? It might easily imply an existing difference from thinking like a doctor, a banker, or a representative from another profession. But within the law, does …

Justifying Subversion: Why Nussbaum Got (The Better Interpretation Of) Butler Wrong, Ori J. Herstein

Cornell Law Faculty Publications

One of the most common critiques directed at deconstructive and poststructuralist theories is that they are amoral – rejecting the validity of the very idea of norms and moral principles as grounds for justifying or criticizing political action and social structures – and that in rejecting the validity of the distinction between what is just and what is unjust, they “collaborate with evil.” By now, an almost canonical example of this common critique is found in Martha Nussbaum’s highly critical essay on the work of Judith Butler, titled The Professor of Parody.3 Here, I focus on Nussbaum’s critique and on …

Aspects Of Deconstruction: The Failure Of The Word "Bird", Anthony D'Amato

Faculty Working Papers

Lawyers and judges often become impatient with those who dispute what they regard as the clear meaning of words. The meaning of words derives from the contexts in which they are employed, and we can never be certain of the context because we cannot enter into the minds of other persons to see the contexts to which their minds are adverting.

Can Legislatures Constrain Judicial Interpretation Of Statutes?, Anthony D'Amato

Faculty Working Papers

An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this …

Imagining Territories: Space, Place, And The Anticity, Jonathan Yovel

Jonathan Yovel

This essay explores the concept of "Territory" in some of its cultural forms, as well as looks into cultural and linguistic conditions for territories-talk. Initially, it engages territory as a pre-political representation and explores its formal relation to space and to place. It defines territory as the paradigmatic non-place and contrasts it with the concept of the city (in fact, an anticity), especially as reflected in renaissance and early modern art/architecture, with examples from Schedel, Bellini, Breugel and others, as well as from contemporary graphic works (Moebius, Qual, Nowak).

Moving from the cultural to the political, territories are then explored …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Anthony C. Infanti

In this article, I consider how the tax lawyer’s generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit “lottery.” The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

Tax Equity, Anthony C. Infanti

Anthony C. Infanti

Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on “income” as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in the …

A Whale Of A Tale: Post-Colonialism, Critical Theory, And Deconstruction: Revisiting The International Convention For The Regulation Of Whaling Through A Socio-Legal Persepctive, Nick J. Sciullo

Nick J. Sciullo

This article is a critical interpretation of the indigenous whaling debate, which, although often discussed in legal academia, has received only passing critical attention. As a scholar in the critical theory/critical legal studies model, I am primarily concerned with the impact that law and debates about law have on divergent groups (racial, ethnic, gender, etc.). This article develops a criticism of the United States's postcolonial opposition to whaling, arguing, instead, for cultural relativism. The article indicts U.S. imperialism, and treatment of indigenous peoples, arguing for interdisciplinary analysis and a more keen appreciation for the voice of indigenous peoples. As I …

Tax Equity, Anthony C. Infanti

Articles

Simply put, this article stands the traditional concept of tax equity on its head. Challenging the notion that tax equity is an unequivocal good, this article deconstructs the concept of tax equity to reveal the subtle, yet pernicious ways in which it shapes tax policy debates and impinges upon contributions to those debates. The article describes how tax equity, with its narrow focus on income - as the sole relevant metric for judging tax fairness, presupposes a population that is homogeneous along all other lines. Through this insidious homogenization, tax equity performs both a sanitizing and a screening function in …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

Scholarly Works

As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

Legal Ethics And Scientific Testimony: In Defense Of Manufacturing Uncertainty, Deconstructing Expertise And Other Trial Strategies, David S. Caudill

Villanova Law Review

No abstract provided.

A Brief Survey Of Deconstruction, Pierre Schlag

Publications

No abstract provided.

The Torture Victim's Protection Act, The Alien Tort Claims Act, And Foucault's Archaeology Of Knowledge, Eric A. Engle

Eric A. Engle

Outilnes the procedural obstacles to Alien Tort Statute Claims and discusses how to surmount them. Relates ATS to Foucaults power-knowledge and power-body discourses.

Tax Protest, A Homosexual, And Frivolity: A Deconstructionist Meditation, Anthony C. Infanti

Articles

In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian …

Deconstructing The Framers' Right To Property: Liberty's Daughters And Economic Rights, Barbara Stark

Hofstra Law Review

Deconstruction is a method for exposing hidden assumptions, that which is taken for granted, unquestioned. This Article draws on this method first to explain how the right to property, as understood by the Framers, became the hidden, unquestioned assumption of the Bill of Rights. Second, this Article draws on deconstruction to "unpack" the right to property to reveal the lesser-subsumed economic rights it takes for granted. It argues that the right to property and economic rights are iterations of the same rights, from the perspectives of the "haves" and the "have-nots," respectively. Recent work by women's historians makes it possible …

Who's Afraid Of Humpty Dumpty: Deconstructionist References In Judicial Opinions, Madeleine Plasencia

Seattle University Law Review

The question of why judges are concerned with justifying or defending their decisions from the followers of Derrida?, is posed in this Article both generally, as a matter of legal interpretation, and specifically, within the context of the issue(s) presented in the examined cases. By examining the concerns articulated by the judges in these cases and then referring back to the writings of Derrida, this Article describes the likely outcome if Derrida's views of (legal) interpretation are in fact applied in judicial opinion-making. In Parts II and III, this Article introduces the reader to important concepts in Derridean deconstruction. These …

Hiding The Ball, Pierre Schlag

Pierre Schlag

No abstract provided.

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Stephen M. Feldman

Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence is either conservative or apolitical because it lacks the foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. Postmodern interpretivism does not lead to an infinite regress of interpretations that undermines …

The First Cut Is (Not) The Deepest: Deconstructing "Female Genital Mutilation" And The Criminalization Of The Other, David Fraser

Dalhousie Law Journal

Deconstruction, as a 'philosophy'andas a strategy for the reading of texts, offers us the ability to engage in a politics and ethics of justice which seeks to recognize our responsibility to the Other. By 'reading' 'female genital mutilation' with this obligation in mind, this article attempts to deal with the prejudices and barriers to justice which present themselves to those of us in the West who seek an engagement with the Other. The article offers a warning and a reading of the 'text' of 'female genital mutilation' informed by our obligation to justice.

This Is Not A Sentence, Paul F. Campos

Publications

No abstract provided.

Transcendental Deconstruction, Transcendent Justice, J. M. Balkin

Michigan Law Review

A meaningful encounter between two parties does not change only the weaker or the stronger party, but both at once. We should expect the same from any encounter between deconstruction and justice. It might be tempting for advocates of deconstruction to hope that deconstruction would offer new insights into problems of justice, or, more boldly, to assert that "the question of justice" can never be the same after the assimilation of deconstructive insights. But, as a deconstructionist myself, I am naturally skeptical of all such blanket pronouncements, even - or perhaps especially - pronouncements about the necessary utility and goodness …

Legal Classics: After Deconstructing The Legal Canon, Francis J. Mootz Iii

Scholarly Works

The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory.

Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes …

Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases, Stephen M. Feldman

Stephen M. Feldman

Whereas modernists constantly attempt to reduce the meanings of texts to an essential core or single truth, postmodernists are antifoundationalists and anti-essentialists. According to postmodernists, the meaning of a text is never grounded or stable, and therefore one can always find multiple meanings or truths. Thus, one performs a postmodern flip by taking a segment of a text, event, or concept that apparently has been reduced to a static meaning or truth and suggesting the possible existence of another meaning or truth. The postmodern flip then is completed by exploring how this new meaning or truth of the segment of …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Interpretation Of The Statutory Modification Of Joint And Several Liability: Resisting The Deconstruction Of Tort Reform, Gregory C. Sisk

Seattle University Law Review

This Article defends RCW 4.22.070 and opposes the deconstruction of legislative tort reform. The Article’s premise is that the legislature did indeed intend to accomplish a significant reform of the liability system and to take a long, purposeful stride toward the implementation of comparative fault as applied to all parties in tort litigation. The Article concludes that the legislature adopted language that adequately, if sometimes imperfectly, achieves that purpose. The Article discusses the following: the meaning of “fault” as applicable through RCW 4.22.070; the nature of the entities to whom fault must be allocated; the responsibility for raising the culpability …