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Full-Text Articles in Law

Emotional Competence, Multicultural Lawyering And Race, Marjorie A. Silver Dec 2010

Emotional Competence, Multicultural Lawyering And Race, Marjorie A. Silver

Marjorie A. Silver

No abstract provided.


Strategic Enforcement, Alex Stein, Margaret H. Lemos Nov 2010

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Alex Stein

Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement …


Hart V Finnis: How Will Positivism And Natural Law Account For The Socio-Legal Paradigm In Wikipedia?, Siyuan Chen Sep 2010

Hart V Finnis: How Will Positivism And Natural Law Account For The Socio-Legal Paradigm In Wikipedia?, Siyuan Chen

Siyuan CHEN

There is little doubt that Wikipedia is one of the world’s most influential websites today – and its sphere of influence is set to grow in days to come. The evidence for this is strong. As of June 2010, Wikipedia is the internet’s 6th most popular website (by virtue of the Alexa Traffic Rank), and it is also the most popular “general reference” site in cyberspace, with more than 3 million articles in the English language edition. It has been and will continue to be the flagship of Web 2.0, with every single edit being potentially scrutinised by a global …


Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin Sep 2010

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …


Jurisprudence Between Science And The Humanities, Dan Priel Aug 2010

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I …


Sticky Slopes, David Schraub Aug 2010

Sticky Slopes, David Schraub

David Schraub

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces …


Conceptual Analysis In Science And Law, Aaron Rappaport Aug 2010

Conceptual Analysis In Science And Law, Aaron Rappaport

Aaron Rappaport

Ever since H. L. A. Hart’s magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines’ mission: Legal theorists struggle with abstract questions about the “nature” of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ? This paper offers …


Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis Aug 2010

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …


Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy Aug 2010

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …


Law As Referent, Craig G. Bateman Jul 2010

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …


Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall Jun 2010

Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall

Allen Mendenhall

Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an …


Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan Jun 2010

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …


Rights, Privileges And Access To Information, Alina Ng Jun 2010

Rights, Privileges And Access To Information, Alina Ng

Alina Ng

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users …


Words, Meanings, And Plain Language Interpretation, John Zingarelli May 2010

Words, Meanings, And Plain Language Interpretation, John Zingarelli

John Zingarelli

Courts routinely decide cases in accordance with the Plain Language Rule, which requires a literal interpretation of statutes wherever such statements are clear and do not lead to a result manifestly at odds with the intent of the legislation. The rule directs that once a plain meaning has been obtained further interpretation should cease, and that a court should consider no non-statutory material that would serve to destabilize or change the plain meaning. The rule, however, ignores an insight that has become fundamental to lexicography. More than 250 years ago Samuel Johnson demonstrated in his Dictionary of the English Language …


Exploring A New Paradigm For Women's Rights, Rebecca Zietlow Mar 2010

Exploring A New Paradigm For Women's Rights, Rebecca Zietlow

Rebecca E Zietlow

Nearly forty years after the Supreme Court recognized gender as a suspect class under the Equal Protection Clause of the Fourteenth Amendment, and almost half a century after the 1964 Civil Rights Act guaranteed women the right to work free of sex discrimination, women still find found gender equality to be an elusive goal. The persistent gender gap in wages and the continued prevalence of domestic violence are two indications that the predominant model of equality law, based in the Equal Protection Clause, is simply not adequate to address women’s inequality in our society.

The book GENDER EQUALITY: DIMENSIONS OF …


Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud Mar 2010

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …


Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe Mar 2010

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …


Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen Mar 2010

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …


Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson Mar 2010

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

Erika K. Wilson

While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …


The Political Philosophy Of The Internet - From Locke’S State Of Nature To His Social Contract, Efrat Shuster Mar 2010

The Political Philosophy Of The Internet - From Locke’S State Of Nature To His Social Contract, Efrat Shuster

Efrat Shuster

No abstract provided.


Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Robert E. Atkinson Mar 2010

Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Robert E. Atkinson

Robert E. Atkinson Jr.

This paper undertakes a detailed analysis of today’s standard theory of the philanthropic sector, in order to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has two basic short-comings: Its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. Even more basically, the standard model’s primary focus on the …


'From Savigny Through Sir Henry Maine': Roscoe Pound’S Flawed Portrait Of James Coolidge Carter’S Historical Jurisprudence, Lewis A. Grossman Mar 2010

'From Savigny Through Sir Henry Maine': Roscoe Pound’S Flawed Portrait Of James Coolidge Carter’S Historical Jurisprudence, Lewis A. Grossman

Lewis A. Grossman

In Roscoe Pound's scathing 1909 review of Law: Its Origin, Growth and Function, American jurist James Coolidge Carter's magnum opus, Pound asserted that Carter's conception of law "comes from Savigny through Sir Henry Maine." Frederich Karl von Savigny and Sir Henry Maine were the most prominent representatives of the German and English historical schools of jurisprudence, respectively. For his part, Carter was the leading representative of historical jurisprudence in the United States. Other scholars, following Pound, have similarly linked Carter to Savigny and Maine, especially to the former. Moreover, various authors have noted the great effect these European jurists had …


Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin Mar 2010

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …


Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray Feb 2010

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

David C. Gray

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.


An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang Jan 2010

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang

Lee J Strang

In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.

First, I briefly review the debate in originalism over the role of constitutional precedent.

Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …


Extraordinary Justice, David Gray Dec 2009

Extraordinary Justice, David Gray

David C. Gray

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …


When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng Dec 2009

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Alina Ng

This Article explores what authorship and creative production means in the digital age. Notions of the author as the creator of the work provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author, as the creator and producer of a work, has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author’s rights in his creation to provide the incentive to create and allow him to appropriate the social value generated by his creativity as recognition …


Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer Dec 2009

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …


Lucy V. Adams, Sage Encyclopedia Of African American Education, Armando G. Hernandez Dec 2009

Lucy V. Adams, Sage Encyclopedia Of African American Education, Armando G. Hernandez

Armando G. Hernandez

Each topic in this 2-volume encyclopedia is discussed as it relates to the education of African Americans. The entries provide a comprehensive overview of educational institutions at every level, from preschool through graduate and professional training, with special attention to historically and predominantly Black colleges and universities. The encyclopedia follows the struggle of African Americans to achieve equality in education—beginning among an enslaved population and evolving into the present—as the efforts of many remarkable individuals furthered this cause through court decisions and legislation.


Putting The World Back Together? Recovering Faithful Citizenship In A Postmodern Age, Harry G. Hutchison Dec 2009

Putting The World Back Together? Recovering Faithful Citizenship In A Postmodern Age, Harry G. Hutchison

Harry G. Hutchison

Archbishop Chaput’s book, Render Unto Caesar, signifies the continuation of an impressive and persistent debate about what is means to be Catholic and how Catholics should live out the teachings of the Church in political life in our postmodern society. Render Unto Caesar provides evidence that the America’s identity and future are endangered by trends reifying radical human autonomy and choice. New threats surface in the form of legislation and judicial interpretations permitting choices that were once considered criminal to be accepted. This trend has been accompanied, if not facilitated, by U.S. Supreme Court decisions that have contributed greatly to …