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Articles 31 - 60 of 106
Full-Text Articles in Law
The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall
The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall
Faculty Publications
No abstract provided.
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
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 …
Citizens United And The Roberts Court's War On Democracy, Gene Nichol
Citizens United And The Roberts Court's War On Democracy, Gene Nichol
Faculty Publications
No abstract provided.
How To Argue About Prostitution, Michelle Dempsey
How To Argue About Prostitution, Michelle Dempsey
Michelle Madden Dempsey
This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical enterprise as one (amongst other) valuable ways to argue about prostitution.
Elections Matter, Michael J. Gerhardt
Leiter On The Legal Realists, Michael S. Green
Leiter On The Legal Realists, Michael S. Green
Faculty Publications
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to …
Punishment As Contract, Claire Oakes Finkelstein
Punishment As Contract, Claire Oakes Finkelstein
All Faculty Scholarship
This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …
What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts
What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts
All Faculty Scholarship
No abstract provided.
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
All Faculty Scholarship
No abstract provided.
Never Say Never: Searching For Common Ground Between Muslim And Western Nations On The Issues Of Human Dignity And Human Rights, Travis Weber
Travis Weber
Travis Weber 3736 Silina Drive Virginia Beach, VA 23452 703-470-5411 tsweber@gmail.com May 4, 2010 To Whom It May Concern: Enclosed is an abstract for my article, entitled Never Say Never: Searching for Common Ground Between Muslim and Western Nations on the Issues of Human Dignity and Human Rights. My article examines the gap between Islamic and Western views of human rights, explores how this gap developed, and briefly reviews how different theories of jurisprudence would approach this gap. Due to the current world-wide increase in religious activity, including the prominence of Islam, and the version of morality that Islam brings …
Law As Referent, Craig G. Bateman
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
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
Book Review, Eric Heinze
Book Review, Eric Heinze
Prof. Eric Heinze, Queen Mary University of London
Book Review: Randall Baldwin Clark, "The Law Most Beautiful and Best: Medical Argument and Magical Rhetoric in Plato’s Laws", Lexington Books, 2004 (pp. 178 + xiv) Randall Clark has distinguished himself among a growing number of scholars taking a new look at theories of law in ancient Greek texts. The review examines a number of original features of Clark’s approach, and shows how the book sheds new light on important themes in Plato’s Republic and Laws.
Pragmatic Idealism And The Scholarship Of Mel Durchslag, William P. Marshall
Pragmatic Idealism And The Scholarship Of Mel Durchslag, William P. Marshall
Faculty Publications
No abstract provided.
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
All Faculty Scholarship
In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …
Unprofitable Lending: Modern Credit Regulation And The Lost Theory Of Usury, Brian M. Mccall
Unprofitable Lending: Modern Credit Regulation And The Lost Theory Of Usury, Brian M. Mccall
Brian M McCall
With almost daily news stories about the crisis in our credit markets, it seems inevitable that a new political and academic debate about credit regulation is commencing. With Americans paying billions of dollars in finance charges every year and some loosing their homes, it is time to ask fundamental questions about the liberality of credit supply and terms. Rather than readjusting usury limits or tinkering with disclosure requirements, it is time to reassess America’s philosophy of lending. Although the current socio-economic belief that more credit is better has held dominance for several centuries, history offers an alternative theory. Surprisingly, a …
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
All Faculty Scholarship
No abstract provided.
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
All Faculty Scholarship
Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …
Judicial Accountability In A Time Of Legal Realism, William P. Marshall
Judicial Accountability In A Time Of Legal Realism, William P. Marshall
Faculty Publications
No abstract provided.
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry
All Faculty Scholarship
No abstract provided.
Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell
Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell
All Faculty Scholarship
Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. This Article considers how paternalistic policies fare under a dynamic account of decision making that incorporates learning and motivation effects. This approach brings out two important limitations on the efficiency effects of paternalistic regulations. First, if preferences and biases are endogenous to institutional forces, paternalistic government regulations may perpetuate and even magnify a given bias and cause other adverse psychological effects. Second, for some biases, it will be more efficient to invest resources in debiasing than …
Moralizing In Public, Anita L. Allen
The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan
The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan
Faculty Publications
No abstract provided.
Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green
Halpin On Dworkin's Fallacy: A Surreply, Michael S. Green
Faculty Publications
No abstract provided.
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
All Faculty Scholarship
No abstract provided.
The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall
The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall
Faculty Publications
No abstract provided.
Ripstein, Rawls, And Responsibility, Stephen R. Perry
Ripstein, Rawls, And Responsibility, Stephen R. Perry
All Faculty Scholarship
No abstract provided.
Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick
Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick
All Faculty Scholarship
No abstract provided.