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Full-Text Articles in Law

The Path Of Posner's Pragmatism, Edward Cantu Aug 2010

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …


Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller Apr 2010

Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller

Missouri Law Review

Part II of this Article positions the discussion in a theoretical context and describes the significance of party sophistication as a compromise between formalist and realist concerns. Part III collects examples of settings in which courts have used party sophistication as a tool to organize the world of contracting parties and, with that, the applicable legal principles. For sophisticated parties, in answering a wide array of contract questions, courts employ a formalist approach. Part IV begins descriptively and addresses the general lack of meaningful assessment of party sophistication. Drawing upon the review of hundreds of cases, Part IV identifies what …


Patent Law And The Two Cultures, Peter Lee Jan 2010

Patent Law And The Two Cultures, Peter Lee

Peter Lee

A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …


Hacia La Construcción De Una Teoría De La Ineficacia Procesal En El Proceso Civil Peruano, Renzo Cavani Jan 2010

Hacia La Construcción De Una Teoría De La Ineficacia Procesal En El Proceso Civil Peruano, Renzo Cavani

Renzo Cavani

This essay has the objective to build the dogmatic fundaments for a procedure inefficacy theory for the peruvian civil procedure.

O presente ensaio tem por objetivo a construção dos fundamentos dogmáticos para uma teoria da ineficácia processual para o processo civil peruano.

El presente ensayo tiene como objetivo la construcción de los fundamentos dogmáticos para una teoría de la ineficacia procesal para el proceso civil peruano.


Pragmatic Indeterminacy, Anthony D'Amato Jan 2010

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.


Further Reflections On Post-Realist Legal Scholarship And Teaching: A Brief Response To Professor Scordato, Gregory S. Crespi Jan 2010

Further Reflections On Post-Realist Legal Scholarship And Teaching: A Brief Response To Professor Scordato, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In this article, the author scrutinizes Professor Marin Roger Scordato’s recommendations regarding legal scholarship and teaching in the post-realist era. The author takes issue with some of Scordato’s recommendations on how to resolve the tension between instrumentalism and formalist legal discourse. Rather than devoting the bulk of their instruction to conventional doctrines and formalist analysis, the author suggests that instrumentalist law professors give greater relative emphasis to instrumentalist critiques.


Production Values: Fordism And Formalism In North By Northwest, Michael R. Griffiths Jan 2010

Production Values: Fordism And Formalism In North By Northwest, Michael R. Griffiths

Faculty of Law, Humanities and the Arts - Papers (Archive)

This essay analyzes the aesthetics of capitalist economics at the threshold of the transition from fordist to postfordist modes of production. The essay organizes this analysis around a close reading of Alfred Hitchcock's 1959 film North by Northwest. At stake is the relation between aesthetic productions which engage the economic base and thematize this engagement. In making this claim, the notion of capital's "axiomatic"--a concept by which Gilles Deleuze and Felix Guattari designate the relative autonomy of the economic base--is employed to examine the way that, from as early as the 1950s, U. S. capitalism's prodigious industries of entertainment and …


Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick Jan 2010

Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick

All Faculty Scholarship

The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent …