Law Commons^™

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin

Cornell Law Faculty Publications

"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false.

In Chapter 2, we propose that there are two plausible models of common law reasoning, …

Corporate Speech, Securities Regulation, And An Institutional Approach To The First Amendment, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

Does the First Amendment shield politically tinged corporate speech from the compelled disclosure and reporting requirements embedded in the U.S. securities laws? The question arises in the securities regulation context because of an impending jurisprudential train wreck between the Supreme Court's commercial speech doctrine and its approach to corporate political speech. As corporations begin mixing commercial messages with political commentary, First Amendment jurisprudence simply provides insufficient guidance on the role government should play in regulating that speech. Although First Amendment jurisprudence generally counsels against governmental restrictions on corporate political speech without regard to the truth or falsity of the message, …

Constitutional Chicken Soup, Tracy E. Higgins

Fordham Law Review

No abstract provided.

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Fordham Law Review

No abstract provided.

The Internal Point Of View In Law And Ethics: Introduction, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

What Is The Internal Point Of View?, Scott J. Shapiro

Fordham Law Review

No abstract provided.

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen Perry

Fordham Law Review

No abstract provided.

Hobbes And The Internal Point Of View, Claire Finkelstein

Fordham Law Review

No abstract provided.

A Socio-Legal Methodology For The Internal/External Distinction: Jurisprudential Implications, Brian Z. Tamanaha

Fordham Law Review

No abstract provided.

The Intrinsic Value Of Obeying A Law: Economic Analysis Of The Internal Viewpoint, Robert Cooter

Fordham Law Review

No abstract provided.

A Tale Of Two Trajectories, Cynthia A. Williams

Fordham Law Review

No abstract provided.

Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis

Law Faculty Articles and Essays

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this "Service of Death and Resurrection" was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on "The Churchmanship of Harry Blackmun." Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once preached on …

From States' Rights Blues To Blue States' Rights: Federalism After The Rehnquist Court, Kathleen M. Sullivan

Fordham Law Review

No abstract provided.

Legal Obligations And The Internal Aspect Of Rules, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Access To Justice And The Evolution Of Class Action Litigation In Australia, Camille Cameron, Bernard Murphy

Articles, Book Chapters, & Popular Press

The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …

The Jurisprudence Of Justice Stevens, William Michael Treanor

Fordham Law Review

No abstract provided.

Originalism As A Political Practice: The Right's Living Constitution, Robert Post, Reva Siegel

Fordham Law Review

No abstract provided.

Are Constitutional Norms Legal Norms?, Jeremy Waldron

Fordham Law Review

No abstract provided.

Rules, Standards, And The Internal Point Of View, Dale A. Nance

Faculty Publications

The general thrust of the present discussion is that, in addition to its contribution to economizing on enforcement costs, there is a connection between the internal point of view and the aspiration to republican self-government: the greater the incidence of the former, the greater the achievement of the latter, ceteris paribus. This fact imbues the notion of a healthy legal system with a crucially normative component that goes beyond, and need not be inconsistent with, efficient social organization.

State Action Doctrine And The Principle Of Democratic Choice, Wilson R. Huhn

Akron Law Faculty Publications

The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment--a threshold requirement that must be satisfied before triggering protection of our fundamental rights--but the doctrine itself seems to be curiously without purpose, a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason. Nearly forty years ago, Professor Charles Black called the state action doctrine “a conceptual disaster area” and characterized scholarly commentary upon it as “a torchless search for a way out of a damp echoing …

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Fordham Law Review

No abstract provided.

Critical Constitutionalism Now, Louis Michael Seidman

Fordham Law Review

No abstract provided.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Fordham Law Review

No abstract provided.

The New Constitution And The Judicialization Of Pure Politics Worldwide, Ran Hirschl

Fordham Law Review

No abstract provided.

Political Power And Judicial Power: Some Observations On Their Relation, Mark Tushnet

Fordham Law Review

No abstract provided.

Rules, Standards, And The Internal Point Of View, Dale A. Nance

Fordham Law Review

No abstract provided.

The Legal Profession As A Blue State: Reflections On Public Philosophy, Jurisprudence, And Legal Ethics, Russell G. Pearce

Fordham Law Review

No abstract provided.

Seeing Tort Law From The Internal Point Of View: Holmes And Hart On Legal Duties, John C.P. Goldberg, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.