Law Commons^™

Judges Or Hostages? The Bureaucratization Of The Court Of Justice Of The European Union And The European Court Of Human Rights, Mathilde Cohen

Mathilde Cohen

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

Deliberating Beyond Evidence: Lessons From Integrated Assessment Modelling, Elisa Vecchione

Elisa Vecchione

The premises of this paper rely on associating policy inertia toward action on climate change with the inadequacy of the classical ‘liability culture’ of evidence-based policy-making to deal with this global environmental challenge. To provide support to this hypothesis, the following discussion analyses the technical properties and the current policy use of Integrated Assessment Modelling (IAM) of economic-climate interactions. The paper contends that IAM is still not clarified enough as far as its potential for information-production in the framework of policy making processes is concerned, and that this fact is symptomatic of the current inability of societies to undertake the …

Rational Reasonableness: Toward A Positive Theory Of Public Reason, Gillian K. Hadfield, Stephen Macedo

Gillian K Hadfield

Why is it important for people to agree on and articulate shared reasons for just laws, rather than whatever reasons they personally find compelling? What, if any, practical role does public reason play in liberal democratic politics? We argue that the practical role of public reason can be better appreciated by examining the structural similarities in normative and positive political theory. Specifically, we consider the analytical parallels between Rawls’ account of political liberalism and a rational choice model of legal order recently proposed by Hadfield & Weingast (2011). The positive model proposes that a shared system of reasoning—a common logic—plays …

Formulaically Describing 21st Century Supreme Court Tax Jurisprudence Ii, 2001-2010., Andre L. Smith

Andre L. Smith

Abstract This article attempts to discover a deliberative formula in matters of taxation by culling the Supreme Court’s 14 federal tax opinions from 2001 to 2010 (Gitlitz v. Commissioner, Cleveland Indians Baseball v. United States, United Dominion Industries v. United States, United States v. Craft, United States v. Fior D’Italia, Boeing v. United States, United States v. Galletti, Banks v. Commissioner, Ballard v. Commissioner, EC Term of Years v. United States, Hinck v. United States, Clintwood Elkhorn v. United States, Knight v. United States, and Boulware v. United States). It continues the project Formulaically Expressing 21st Century Supreme Court Tax …

The Rule Of Law As The Rule Of Reasons, Mathilde Cohen

Mathilde Cohen

Not The Crime But The Cover-Up: A Deterrence Based Rationale For The Premeditation-Deliberation Formula, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first-degree murder, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.

Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …

The Obama Phenomenon: Deliberative Conversationalism & The Pursuit Of Community Through Presidential Politics, Robert Justin Lipkin

Robert Justin Lipkin

Does The Constitutional Process Matter?, Zachary Elkins

Zachary Elkins

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications …

Renewing Intraparty Democracy: Assessing Competition, Deliberation, And Associational Rights Of Political Parties, Jonathan J. Thessin

Jonathan J Thessin

Among the many schools of thought on the design of political institutions are two particularly fashionable ones: competitive market theories and deliberative democracy theories. Competitive democrats argue for destabilizing the two-party system by enabling third parties to compete effectively; by contrast, deliberative democrats argue for more discussion before political decisions are made. Neither theory, however, pays sufficient attention to the internal character of parties. Oftentimes, dominant parties lock up political institutions and restrict meaningful discussion not only by imposing ballot restrictions on third parties but also by restricting access to party leadership.

This article argues for a shift away from …

Renewing Intraparty Democracy: Assessing Competition, Deliberation, And Associational Rights Of Political Parties, Jonathan J. Thessin

Jonathan J Thessin

Among the many schools of thought on the design of political institutions are two particularly fashionable ones: competitive market theories and deliberative democracy theories. Competitive democrats argue for destabilizing the two-party system by enabling third parties to compete effectively; by contrast, deliberative democrats argue for more discussion before political decisions are made. Neither theory, however, pays sufficient attention to the internal character of parties. Oftentimes, dominant parties lock up political institutions and restrict meaningful discussion not only by imposing ballot restrictions on third parties but also by restricting access to party leadership.

This article argues for a shift away from …

Renewing Intraparty Democracy: Assessing Competition, Deliberation, And Associational Rights Of Political Parties, Jonathan J. Thessin

Jonathan J Thessin

Among the many schools of thought on the design of political institutions are two particularly fashionable ones: competitive market theories and deliberative democracy theories. Competitive democrats argue for destabilizing the two-party system by enabling third parties to compete effectively; by contrast, deliberative democrats argue for more discussion before political decisions are made. Neither theory, however, pays sufficient attention to the internal character of parties. Oftentimes, dominant parties lock up political institutions and restrict meaningful discussion not only by imposing ballot restrictions on third parties but also by restricting access to party leadership.

This article argues for a shift away from …

Renewing Intraparty Democracy: Assessing Competition, Deliberation, And Associational Rights Of Political Parties, Jonathan J. Thessin

Jonathan J Thessin

Among the many schools of thought on the design of political institutions are two particularly fashionable ones: competitive market theories and deliberative democracy theories. Competitive democrats argue for destabilizing the two-party system by enabling third parties to compete effectively; by contrast, deliberative democrats argue for more discussion before political decisions are made. Neither theory, however, pays sufficient attention to the internal character of parties. Oftentimes, dominant parties lock up political institutions and restrict meaningful discussion not only by imposing ballot restrictions on third parties but also by restricting access to party leadership.

This article argues for a shift away from …

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Erin Ryan

All lawyers negotiate, and all negotiators deliberate. This article addresses the pervasive but unrefined use of emotional insight by deliberating and negotiating lawyers, and suggests that legal education could improve lawyering by adopting a fuller model of legal thinking that takes account of this “epistemological emotionality.” In forming the beliefs that underlie choices made during deliberation and negotiation, people rely on insights informed by past and present emotional experience. Such epistemological emotional input fuels a pre-linguistic, quasi-inductive reasoning process that enables us to draw on stored information about emotional phenomena to hypothesize about motives, behavior, and potential consequences. As deliberation …