Law Commons^™

Government Lawyers In The Liberal State, W. Bradley Wendel

Cornell Law Faculty Working Papers

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …

Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel

All Papers

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …

Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato

Faculty Working Papers

Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

The Reception Of Hans Kelsen's Legal Theory In The United States: A Sociological Model, D. A. Jeremy Telman

Law Faculty Publications

The Essay explores the reasons underlying opposition to Hans Kelsen's approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen's philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen's legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy's rejection of …

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

Corporate Political Speech And The Balance Of Powers: A New Framework For Campaign Finance Jurisprudence In Wisconsin Right To Life, Frances R. Hill

Saint Louis University Public Law Review

No abstract provided.

Foreword Latcrit Xii - The Critical Locality And The Processes Of Community, Charles R.P. Pouncy

St. Thomas Law Review

The foreword to each annual LatCrit Conference Symposium is a document that generally attempts to situate the current Symposium within the parameters of LatCrit and outsider jurisprudence discourse. In addition to examining the role that the current Symposium plays in the elaboration of LatCrit theory and praxis, part of the task of the foreword calls for reflection on the evolution of the LatCrit project and its future development. This foreword will examine the relationship of the Symposium contributions to the themes of LatCrit XII and to the perennial issues that LatCrit conferences and theory attempt to engage. This foreword, however, …

Building A 'New Institutional' Approach To Corporate Speech, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

This Article represents the second installment in a three-part series designed to articulate a New Institutional approach to corporate speech that could foil the otherwise inevitable collision between the commercial speech doctrine and the Supreme Court's disparate approach to corporate political speech.

The problem arises because corporations are attempting to escape regulation or liability in a variety of settings by investing commercial messages with just enough political content to render the amalgam of politically tinged corporate speech fully protected under the First Amendment. Why would this strategy work? If corporate speech is political, existing Supreme Court jurisprudence suggests that government …

Reflections On The Nature Of Legal Scholarship In The Post-Realist Era, Marin Roger Scordato

Scholarly Articles

This article presents a tightly organized and closely reasoned analysis of legal scholarship in the current post-realist era. Secure and well-defined within the formalist legal world of the nineteenth century, the practice of legal scholarship has been profoundly affected by the realist revolution of the early twentieth century and the instrumentalist view of law that now prevails in the twenty-first century. In response, legal scholars have been forced to dramatically alter the focus, the materials and the basic methods of their study. The practice of legal scholarship is currently occupied in a prolonged struggle to adapt to these changes and …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

A Gift Worth Dying For?: Debating The Volitional Nature Of Suicide In The Law Of Personal Property, Adam J. Macleod

Faculty Articles

Suicide poses difficult and foundational problems for the law. Those who most highly value personal autonomy, those who believe in the inviolability of human life, and those who remain uncommitted on end-of-life issues, all must settle challenging questions about suicide before advancing upon the more complex terrain of physician-assisted suicide, euthanasia, and infanticide. And the way in which a society fashions legal responses to suicidal choices reveals much about the society's cultural commitments and legal assumptions.

The bodies of insurance law, tort, and health care law are also among those areas of the law in which lawmakers reserve special exceptions …

The Jurisprudence Of Love, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Part I of this article explores the concept of Love as an energetic, vibrational, and spiritual force. Part II provides an overview of what Love means in practice. Part III explores two areas of the law--access to health care and global warming--and suggests that significant improvements to those laws would be generated by a Love-based approach to the law.

From The Periphery To The Center? The Evolving Wto Jurisprudence On Transparency And Good Governance, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision …

Clear Notice For Conditions On Spending, Unclear Implications For States In Federal Healthcare Programs, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article explores Arlington Central School District Board of Education v. Murphy, a decision rendered by the first Roberts Court that may become a benchmark for Spending Clause jurisprudence. The majority in Arlington, led by Justice Alito, adopted the standard for constitutional conditions on spending that had been the dissenting view for years during the Rehnquist Court. More specifically, under the Pennhurst and Dole regime, the Court required Congress to provide "adequate" notice of conditions on spending, which seemed to be sufficient for the clear statement rule the Court (through Justice O'Connor) was seeking to institute. Arlington refashioned …

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

School of Law Faculty Publications

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

The Evangelical Debate Over Climate Change, John Copeland Nagle

Journal Articles

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Deystone

Publications

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as evidenced in …

In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler

All Faculty Scholarship

This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may …

The Human Dignity Of Clients, Katherine R. Kruse

Scholarly Works

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Undercover Power: Examining The Role Of The Executive Branch In Determining The Meaning And Scope Of School Integration Jurisprudence, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Wto And The Anti-Corruption Movement, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

This article explores the role of the World Trade Organization (WTO) in promoting good governance while placing WTO within the larger framework of the ongoing global anti-corruption movement. Governmental policies aimed at fighting corruption are part of the good governance criteria set forth by the World Bank and other donor agencies. An important element of good governance is transparency, which has also been one of the pillars of the multilateral trading system. This article argues that from the perspective of the post-Cold War anti-corruption movement, the WTO is an important institution because it provides a comparatively successful forum for the …

Risky Business: Massachusetts V. Epa, Risk-Based Harm, And Standing In The D.C. Circuit, Amanda Leiter

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Reason, Reasons And Normativity, Joseph Raz

Faculty Scholarship

All normative phenomena are normative in as much as, and because, they provide reasons or are partly constituted by reasons. This makes the concept of a reason key to an understanding of normativity. Believing that, I will here present some thoughts about the connection between reasons and Reason and between Reason and normativity.

On The Guise Of The Good, Joseph Raz

Faculty Scholarship

I will provisionally take the Guise of the Good thesis to consist of three propositions: (1) Intentional actions are actions performed for reasons, as those are seen by the agents. (2) Specifying the intention which makes an action intentional identifies central features of the reason(s) for which the action is performed. (3) Reasons for action are such reasons by being facts which establish that the action has some value. From these it is said to follow that (4) Intentional actions are actions taken in, and because of, a belief that there is some good in them. I will examine reasons …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Rethinking Dui Law In Virginia, Monte Kuligowski

University of Richmond Law Review

As the demand for safer roadways needs little supporting argument, I turn to the constitutional problem of strict criminal liability law, followed with a brief analysis of criminal intent and strict liability law within the criminal system, some examples of how other states have responded to the inherent tensions, and a few specific thoughts for the legislature to consider.

Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan

Working Paper Series

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …

Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian

Working Paper Series

Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …

The Prose And The Passion, Penelope J. Pether

Working Paper Series

This essay takes the late Robert Cover's insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch's filmic satire on the Australian takings clause and the landmark Native …