Law Commons^™

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.

Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort

Fordham Law Review

No abstract provided.

Three Versions Of Nonsense, Paul Campos

Publications

No abstract provided.

Repraesentatio In Classical Latin, Alan Watson

Scholarly Works

The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Textualism In Gatt/Wto Jurisprudence: Lessons For The Constitutionalization Debate, Dongsheng Zang

Articles

Today, the World Trade Organization (WTO) jurisprudence is subject to tremendous controversy, the WTO panels' or Appellate Body's interpretation of a WTO text is often heatedly debated; and yet, there seems not much attention paid to the general methodology of interpretation in the practice of the General Agreement on Tariff and Trade (GATT) and WTO jurisprudence, even in a recent debate over constitutionalization between Petersmann and his critics. In rejecting his human rights approach to constitutionalization, Petersmann's critics, rightfully, warn him that he has failed to appreciate the complex relations between human rights and free trade in the history of …

The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work …

Domestic Violence In The Haitian Culture And The American Legal Response: Fanm Ayisyen Ki Gen Kouraj, Mary Clark

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …

Democracy's Handmaid, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …

The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin

Articles & Chapters

This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …

Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School opened its doors on September 28, 1905, a school with ten students and six faculty members. That day marked a great beginning, and on September 28, 2005, we began a year-long celebration of Fordham Law's history and the law school community's remarkable achievements over 100 years. The heart of any great academic institution is, of course, academics, and, as part of the centennial celebration, we are hosting an extraordinary series of conferences. This issue of the Fordham Law Review presents the papers produced by the first of the year's conferences, the Symposium on the jurisprudence of Justice …

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s wicked …

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

A Theory Of Interpretation In The Realm Of Idealism, Larry A. Dimatteo

ExpressO

No abstract provided.

The Prophecies Of The Prophetic Jurist – A Review Of Selected Works Of Oliver Wendell Holmes, Jr., Kissi Agyebeng

Cornell Law School J.D. Student Research Papers

This is a review of the methodology and style of legal research of Oliver Wendell Holmes, Jr., focusing on the ideological and philosophical leanings that informed his scholarship. The review spans selected works of his undergraduate days through his mid-career writings and his representative opinions on the Supreme Judicial Court of the State of Massachusetts and the Supreme Court of the United States.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

On The Potential Of Neuroscience: A Comment On Greene And Cohen’S "For The Law, Neuroscience Changes Nothing And Everything", Theodore Y. Blumoff

ExpressO

In a recent article, Joshua Greene and Jonathan Cohen add their voices to an emerging discussion about the place of neuroscience in law and social policy. They argue convincingly that new data from the developing field of neuroscience will dramatically and positively change our legal system. I agree with their conclusions, but I believe that their commitment to a kind of neuroscientific determinism or essentialism is wrong, unnecessary, and even dangerous; it would move law in a direction that eliminates ongoing, normative decision-making. In the essay I have attached, I first set the stage by discussing the commitment of our …

Law's Ambition And The Reconstruction Of Role Morality In Canada, David M. Tanovich

Dalhousie Law Journal

There is a growing disconnect and alienation between lawyers and the legal profession in Canada. One cause, which is the focus ofthe article, is philosophical in nature. There appears to be a disconnect between the role lawyers want to pursue (i.e., a facilitator of justice) and the role that they perceive the profession demands they play (i.e., a hired gun). The article argues that this perception is a mistaken one. Over the last fifteen years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, an ethic of client-centred zealous advocacy has slowly begun …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.

Taking Facts Seriously–Again, William Twining

Journal of Legal Education

No abstract provided.

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

ExpressO

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Role-Based Policing: Restraining Police Conduct “Outside The Legitimate Investigative Sphere”, Eric J. Miller

ExpressO

The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs.

In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the …

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

Mathematical Determinism: Natural Law's Missing Link - Jurisprudence's Missing Axioms , Ashley Saunders Lipson

ExpressO

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Making State Law In Federal Court, Benjamin C. Glassman

ExpressO

Abstract: We know from Erie R.R. Co. v. Tompkins that unless the Constitution or a federal statute provides the rule of decision in federal court, state law does. Contrary to the assumption of several recent commentators, however, Erie itself does not tell the federal court how to ascertain what is the law of the state, and the refrain that federal courts are to predict what the state supreme court would decide not only proves unhelpful upon examination, but also has tended to confuse the courts themselves in recent years. Yet federal courts routinely face questions of state law that admit …

Parades Of Horribles, Circles Of Hell: Ethical Dimensions Of The Publication Controversy, David S. Caudill

Working Paper Series

This article examines the ethical dimensions of the controversy over no-citation rules and current publication practices. In the literature concerning that controversy, ethical concerns are often mentioned, but usually in tandem with other concerns. Professor Caudill isolates and categorizes the different types of ethical dilemmas, and demonstrates that at different levels of the controversy, the ethical concerns are different. He identifies three levels--the controversy over no-citation rules, the broader controversy over publication practices, and the even broader controversy over privatization of law (the so-called disappearing trial, ADR, and the end of law as we know it).