Law Commons^™

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Robert L. Hayman

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Erin Daly

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

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

Marjorie A. Silver

No abstract provided.

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

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

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 …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

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

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 …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to injure these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where the Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition actually consists of two very different strands: a liberal humanist view that …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Modern First Amendment jurisprudence is deeply paradoxical in nature. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many decisions protect speech that appears to harm these values by attacking the dignity and personality of other people or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality comes from. I argue that the American free speech tradition actually consists of two very different strands: a liberal humanist view that emphasizes the …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

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

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

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 …

Reaction Or Reformation?: Leo Strauss And American Constitutional Law, Andrew C. Spiropoulos

Andrew C. Spiropoulos

This article explains the importance of the work of the political theorist Leo Strauss to the study of American constitutional law. The foundation of Strauss's work was his belief that the civilization of the West faces a profound crisis. This crisis, he argued, was a crisis of modernity, by which he meant modern political philosophy. The nature of this crisis is the West's loss of faith in reason, the cornerstone of its way of life. This loss of faith threatens the intellectual, spiritual, and even physical health of the West. Strauss argued that this crisis came about because of the …

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

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

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

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

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 …

Reaction Or Reformation?: Leo Strauss And American Constitutional Law, Andrew C. Spiropoulos

Andrew C. Spiropoulos

This article explains the importance of the work of the political theorist Leo Strauss to the study of American constitutional law. The foundation of Strauss's work was his belief that the civilization of the West faces a profound crisis. This crisis, he argued, was a crisis of modernity, by which he meant modern political philosophy. The nature of this crisis is the West's loss of faith in reason, the cornerstone of its way of life. This loss of faith threatens the intellectual, spiritual, and even physical health of the West. Strauss argued that this crisis came about because of the …

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

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 …

Bloomin' Buzzin' Confusion: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Robert Rubinson

Bloomin’ Buzzin’ Confusion: Facts and Meaning In Adjudication and Mediation ABSTRACT Any methodology, model, or cognitive process must exclude more than it includes in order to make sense of experience. To do otherwise would leave only, in the words of William James, a “bloomin’ buzzin’ confusion.” Mediation and adjudication go about the process of developing meaning from circumstance in fundamentally different ways. Rather than focusing on what each process identifies as important, the article takes the opposite perspective and focuses on what each process excludes. In doing so, the article explores how adjudication identifies relevant “facts” through a specific mechanism: …

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

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

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 …

Bloomin' Buzzin' Confusion: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Robert Rubinson

Any methodology, model or cognitive process must exclude more than it includes in order to make sense of experience. To do otherwise would leave only, in the words of Williams James, a "bloomin' buzzin' confusion." Mediation and adjudication go about the process of developing meaning from circumstance in fundamentally different ways. Rather than focusing on what each process identifies as important, the article takes the opposite perspective and focuses on what each process excludes. In doing so, the article explores how adjudication identifies relevant "facts" through a specific mechanism: preexisting substantive rules define what matters and procedural rules exclude what …

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

Efrat Shuster

No abstract provided.