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Full-Text Articles in Law

Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban Jan 2021

Complicity And Lesser Evils: A Tale Of Two Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

Government lawyers and other public officials sometimes face an excruciating moral dilemma: to stay on the job or to quit, when the government is one they find morally abhorrent. Staying may make them complicit in evil policies; it also runs the danger of inuring them to wrongdoing, just as their presence on the job helps inure others. At the same time, staying may be their only opportunity to mitigate those policies – to make evils into lesser evils – and to uphold the rule of law when it is under assault. This Article explores that dilemma in a stark form: …


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jun 2019

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jan 2016

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …


The Trial Of Oliver Wendell Holmes, Rodney A. Smolla Jul 2015

The Trial Of Oliver Wendell Holmes, Rodney A. Smolla

Rod Smolla

No abstract provided.


The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha May 2015

The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha

William & Mary Law Review

No abstract provided.


Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green Jun 2013

Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green

Michael S. Green

No abstract provided.


Hans Kelsen And The Logic Of Legal Systems, Michael S. Green Jun 2013

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Michael S. Green

No abstract provided.


Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green Jun 2013

Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green

Michael S. Green

No abstract provided.


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

All Faculty Scholarship

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …


Law As Referent, Craig G. Bateman Jan 2010

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), …


Ivan Rand's Ancient Constitutionalism, Jonathon Penney Jan 2010

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …


The Case Of The 1989 Bordeaux, Garrett Power Sep 2009

The Case Of The 1989 Bordeaux, Garrett Power

Garrett Power

No abstract provided.


Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry Jan 2006

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

All Faculty Scholarship

No abstract provided.


Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green Jan 2005

Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green

Faculty Publications

No abstract provided.


Ripstein, Rawls, And Responsibility, Stephen R. Perry Jan 2004

Ripstein, Rawls, And Responsibility, Stephen R. Perry

All Faculty Scholarship

No abstract provided.


The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler Jan 2004

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

All Faculty Scholarship

Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …


Hans Kelsen And The Logic Of Legal Systems, Michael S. Green Jan 2003

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Faculty Publications

No abstract provided.


Harm, History, And Counterfactuals, Stephen R. Perry Jan 2003

Harm, History, And Counterfactuals, Stephen R. Perry

All Faculty Scholarship

No abstract provided.


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch Jan 2003

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

All Faculty Scholarship

No abstract provided.


Method And Principle In Legal Theory, Stephen R. Perry Jan 2002

Method And Principle In Legal Theory, Stephen R. Perry

All Faculty Scholarship

No abstract provided.


Positivism And The Notion Of An Offense, Claire Oakes Finkelstein Jan 2000

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

All Faculty Scholarship

While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …


On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein Jan 1999

On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.


Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green Jan 1995

Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green

Faculty Publications

No abstract provided.


The Trial Of Oliver Wendell Holmes, Rodney A. Smolla Oct 1994

The Trial Of Oliver Wendell Holmes, Rodney A. Smolla

William & Mary Law Review

No abstract provided.


Reply To Cornel West, William Ewald Jan 1988

Reply To Cornel West, William Ewald

All Faculty Scholarship

No abstract provided.


Plato's Legal Philosophy, Jerome Hall Jan 1956

Plato's Legal Philosophy, Jerome Hall

Indiana Law Journal

No abstract provided.