Law Commons^™

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

The Myth Of Religious Freedom: The Implications Of State Control Of Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Lawyers' Ideal Psychological Type Preferences, Marko Novak

Marko Novak

By indicating typical characteristics of certain areas of law, it seems that we are able to indicate some ideal preferences that persons that are engaged in such have or should have. Moreover, when some specific characteristics are emphasized as typical, and if as such they have been proved historically as important for the well-functioning of a legal field, then such can be called preferred or even ideal. Thus, in this article, I am trying to indicate those preferences in lawyer’s psychological types that make them good lawyers generally, and also specifically regarding their special area of interest within law.

Never Say Never: Searching For Common Ground Between Muslim And Western Nations On The Issues Of Human Dignity And Human Rights, Travis Weber

Travis Weber

Travis Weber 3736 Silina Drive Virginia Beach, VA 23452 703-470-5411 tsweber@gmail.com May 4, 2010 To Whom It May Concern: Enclosed is an abstract for my article, entitled Never Say Never: Searching for Common Ground Between Muslim and Western Nations on the Issues of Human Dignity and Human Rights. My article examines the gap between Islamic and Western views of human rights, explores how this gap developed, and briefly reviews how different theories of jurisprudence would approach this gap. Due to the current world-wide increase in religious activity, including the prominence of Islam, and the version of morality that Islam brings …

Sodom's Shadow: The Uncertain Line Between Public And Private Morality, Todd E. Pettys

Todd E. Pettys

In citizens’ debates about issues of public policy, we frequently encounter what this Article calls the divine accountability thesis—the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens’ political self-conceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings’ deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. …

Because The Cart Situates The Horse: Unrecognized Movements Underlying The Indian Supreme Court’S Internalization Of International Environmental Law, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s …

The Dialectic Of The Hurricane Katrina 9-11 Fund, Omari Sinclair

Omari Sinclair

This article unravels the dialectic concerning whether there should be a 9/11 fund for Hurricane Katrina victims. Part I illustrates the 9/11 fund's unique dynamic - a hybrid of both enterprise liability and corrective justice - and why such a fund was instituted for the victims of 9/11. Part II illustrates how Hurricane Katrina's similarities to 9/11 might warrant a similiar fund structure. Part III explains the implications of establishing such a fund for Hurricane Katrina victims. And Part IV elucidates whether this is a practicable option.

The Supreme Appointment: Visionaries Need Not Apply, Charles W. Rhodes

Charles W Rhodes

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and …

Modal Retributivism: A Theory Of Sanctions For Attempts And Other Criminal Wrongs, Anthony M. Dillof

Anthony M. Dillof

How much punishment, in terms of size and severity, should a person get committing for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner. There is a wide-spread intuition that when it comes to figuring out what punishment a person deserves, &#;harm matters.&#; The idea that Aharm matters@ is the basis for harm-based retributivism. The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less than completed offenses, but how much less? One-half? Three-quarters? The problem with harm-based …

Missclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Jeffrey W. Stempel, Hazel Glenn Beh

Jeffrey W Stempel

Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but also introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures as well as unwisely removing the concept of anticipatory repudiation and corresponding remedy from insurance law. Categorizing …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

What is the conditon that can make an empire socially and politically integrated and thus prosper for a logn time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy Chua, “indeed, in every case tolerance was indispensable to the achievement of …

Gender Budget Analysis In Morocco: Achieving Education Parity For Women And Girls, Christie J. Edwards

Christie J. Edwards Esq.

The Kingdom of Morocco has a long history of stability and democracy in the North African region, in large part due to the government’s commitment to improving the lives and status of women and girls. In the past few years, Morocco has set ambitious goals for increased access for women and girls to education as key strategies for the country’s economic development. However, although the government has committed to these gender-specific policies, implementation of education and literacy programs has been sporadic and inconsistent due to the enormity of the problem of female illiteracy and the complexity of the solutions proposed …

Compelling The Courts To Question Gonzales V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio

Ari B Fontecchio

At its core, this article uses an original, empirical case study to argue that the Supreme Court's 2006 decision in Gonzales v. O Centro has elevated the level of scrutiny with which courts evaluate the government's compelling interest, expanding the safe harbor for harmful, religious activity. In O Centro, the Supreme Court rejected the government's compelling interest in regulating religious use of the Schedule I hallucinogenic substance hoasca. The case survey at the core of this article demonstrates that since this decision, lower courts have required the government to justify its regulation of potentially harmful activities with an almost unrealistically …

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal Positivism Approach, Michael R. Harris

Michael R. Harris

Recent scholarship suggests that legitimizing environmental lawmaking will require a breach of the administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of administrative decision-making and more meaningful civic self-determination. In this article, I examine this claim through the lens of modern legal positivism. It is argued that legal positivism provides the tools necessary to test for and identify the specific structural deficiencies that undermine the legitimacy of the administrative state as a lawmaking institution, and more importantly, to determine what legal changes to agency practice and procedure must be implemented …

When Natural Science Meets The Dismal Science, Stephanie Tai

Stephanie Tai

Both the natural sciences—such as ecology, biology, chemistry, and physics—and economics—the so-called “dismal science”— have become integral to contemporary governance. This article examines how the Supreme Court and appellate courts have taken into account developments in natural science and economics in evaluating Commerce Clause challenges to environmental laws, and applies this examination to the context of wetlands regulation. I present a descriptive claim: that courts, especially the Supreme Court, have already been incorporating new developments in science and economics in their Commerce Clause opinions; this use of developments in scientific and economic research, I contend, arises out of the empirical …

Wittgenstein And The Rule Of Law, Anil Shankar

Anil Shankar

Legal theorists have made a number of attempts to extend Wittgenstein’s remarks on rule-following to the law, but no consensus has emerged as to their appropriate implications. This paper articulates a limited sense in which Wittgenstein’s remarks are of interest to legal theory, as remarks capable of changing how we view and justify our involvement with legal rules. This position responds to both the exaggerations and misreadings that have dominated legal discussion of Wittgenstein and to the recent wave of articles suggesting Wittgenstein’s philosophy has nothing to offer the law. In addition, the article directly raises the question that has …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …

Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen

Ronald Allen

Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the transsubstantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed …

Indecisive Reasons For Action: Socrates, Not Hercules, As Judicial Ideal, Eric J. Miller

Eric J. Miller

Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.

My claim is that Dworkin is caught between a rock and a hard …

Philanthropy's Function: A Neo-Classical Reconsideration, Robert E. Atkinson

Robert E. Atkinson Jr.

This essay lays the groundwork for a “new unified field theory” of philanthropy. That theory must have two complementary parts, an account of philanthropy’s core function and a measure of its performance, a metric for comparing philanthropic organizations both among themselves and with their counterparts in the for-profit, governmental, and household sectors. The essay first explains the need for such a measure, in both theory and practice. It then considers the critical shortcomings of today’s standard theory of philanthropy, which accounts for the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. Chief among …

Philanthropy's Future: Questioning Today’S Orthodoxies, Re-Affirming Yesterday’S Foundations, Robert E. Atkinson

Robert E. Atkinson Jr.

This article maps a way beyond an impasse in today’s treatment of philanthropy in both theory and law by taking us back to philanthropy’s core function, helping the neediest among us and promoting the highest achievements of our best. The standard academic model of philanthropy sees it as subordinate and supplemental to our society’s other public sectors, the market and the state, and uses their metrics, aggregate consumer demand and majority voter preference, to measure philanthropy’s performance. The standard model gives us, as individuals and as a society, no single measure of philanthropy’s traditional goal, the public good, besides consumer …