Law Commons^™

After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn

Dalhousie Law Journal

In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …

Consumer Expectations, Jerry J. Phillips

South Carolina Law Review

No abstract provided.

United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell

American University Law Review

No abstract provided.

Fraud-On-The-Fda &(And) Buckman - The Evolving Law Of Federal Preemption In Products Liability Litigation, Trent Kirk

South Carolina Law Review

No abstract provided.

Protecting South Carolina's Isolated Wetlands In The Wake Of Solid Waste Agency, Ross B. Plyler

South Carolina Law Review

No abstract provided.

Homicide In Aretaic Terms, Kyron J. Huigens

Articles

No abstract provided.

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Teaching Wesley Hohfeld's Theory Of Legal Relations, Curtis Nyquist

Journal of Legal Education

No abstract provided.

Young Christopher Langdell, 1826-1854: The Formation Of An Educational Reformer, Bruce A. Kimball

Journal of Legal Education

No abstract provided.

Bijuralism In Law's Empire And In Law's Cosmos, Nicholas Kasirer

Journal of Legal Education

No abstract provided.

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis

Articles

This Article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas-federalism, freedom of association, the religion clauses, and the balance of power between juries and judges-the Court is helping sustain a civil order that bubbles up from state governments or from citizens voluntarily gathered together or randomly selected. The Article is the first to …

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

Abuse Of Rights: An Old Principle, A New Age, Michael Byers

Faculty Scholarship

No abstract provided.

Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale

Faculty Scholarship

Regenerative medicine seeks not only to cure disease, but also to arrest the aging process itself. So far, public attention to the new health care has focused on two of its methods: embryonic stem-cell research and therapeutic cloning. Since both processes manipulate embryos, they alarm those who believe life begins at conception. Such religious objections have dominated headlines on the topic, and were central to President George W. Bush's decision to restrict stem-cell research.

Although they are now politically potent, the present religious objections to regenerative medicine will soon become irrelevant. Scientists are fast developing new ways of culturing the …

Between Law And Virtue, Joseph P. Tomain, Barbara Watts

Faculty Articles and Other Publications

Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both …

Extending The Revisionist Project, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Cyberproperty And Judicial Dissonance: The Trouble With Domain Name Classification, Xuan-Thao Nguyen

Articles

The nature of cyberspace continues to be woven into the fabric of our daily existence. Not surprisingly, cyberspace and the expansion of e-commerce pose challenges to existing law, particularly the legal definition of cyberproperty domain names. The nature of cyberspace allows many e-companies to possess no traditional assets such as buildings and inventories. Some e-companies own few computers, often using service providers to maintain their web sites. In the virtual space that e-companies inhabit, the primary assets that e-companies own are intangibles such as domain names, customer information, and intellectual property that includes business method patents, copyrights, and trademarks.

Domain …

Euclid Lives: The Survival Of Progressive Jurisprudence, Michael Allan Wolf, Charles M. Haar

Law Faculty Publications

The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach - Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co. This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Akron Law Faculty Publications

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished …

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

Faculty Articles

No abstract provided.

The Aesthetics Of American Law, Pierre Schlag

Publications

Before the ethical dreams and political ambitions of law can even be articulated, let alone realized, the aesthetics of law have already shaped the medium within which those projects will have to do their work. This work attempts to retrieve and expose those recurrent forms that shape the creation, apprehension, and identity of law. What is at stake is an attempt to reveal the aesthetics within which American law is cast. The point is not simply to appreciate these aesthetics, but to understand how "substantive" conflicts in law are often motivated, sustained and circumscribed by the aesthetics through which they …

The Seventh Amendment Right To A Civil Jury Trial: The Supreme Court Giveth And The Supreme Court Taketh Away, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article examines the Supreme Court’s jurisprudence relating to the historic Seventh Amendment right to a jury trial. I describe the three-prong analysis that the Court employs, analyze the Court’s decisions that analyze the jury trial, and conclude that the Court’s decisions are consistent with its Seventh Amendment line of cases in which it emphasizes the preservation of the basic right to jury under the first inquiry, while it de-emphasizes the essence and scope of that right under the second and third inquiries.

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

Scholarly Works

No abstract provided.

Law And Prudence In The Law Of Justiciability: The Transformation And Disappearance Of The Political Question Doctrine, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay develops the foregoing argument by examining, in Section I, the transformation of the political question doctrine from Baker v. Carr through Walter Nixon v. United States. Section II charts a similar, perhaps even more dramatic transformation of the law of standing. Section I then examines Bush v. Gore, explaining how older doctrines of standing and political questions might have been thought relevant there. It argues as well that the very fact that those doctrines went unmentioned by the Court shows why we must take a historically grounded view of justiciability doctrines. Section IV sketches the historical settings in …

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …

Autonomy, Self-Governance, And The Margin Of Appreciation: Developing A Jurisprudence Of Diversity Within Universal Human Rights, Douglas Lee Donoho

Faculty Scholarship

No abstract provided.

Normativity And Objectivity In Law, Dennis Patterson

William & Mary Law Review

No abstract provided.

Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington

Duke Law Journal

No abstract provided.

Business Lawyer, Woman Warrior: An Allegory Of Feminine And Masculine Theories, Barbara Ann White

All Faculty Scholarship

The first part of this essay is a discourse on how two of the last half century’s most influential contributions to legal thinking: Law and Economics Jurisprudence and Feminist Legal Theory, whose adherents are normally adversaries, can function synergistically to create a greater analytic power. Using business law issues as an example - historically law and economics’ terrain but recently explored by feminism - I comment on how each can unravel different knots but each standing alone leave other conundrums unresolved.

Expanding on the feminist concept of “masculine thinking,” I discuss how, just as law and economics’ analytic style (i.e., …