Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 9 of 9

Full-Text Articles in Law

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash Feb 2007

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …


Marriage And The Elephant: State Regulation Of Intimate Relationships Between Adults , Maxine Eichner Aug 2006

Marriage And The Elephant: State Regulation Of Intimate Relationships Between Adults , Maxine Eichner

ExpressO

This essay considers the current debate in legal theory over the future of marriage. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships between adults, however, implicate a number of important …


A Philosophical Investigation Into Methods Of Constitutional Interpretation In The United States And The United Kingdom, Louis E. Wolcher Oct 2005

A Philosophical Investigation Into Methods Of Constitutional Interpretation In The United States And The United Kingdom, Louis E. Wolcher

ExpressO

Most constitutional theorists in America and Britain are primarily interested in the contents of their respective constitutions. They pay less attention (and in Britain far less attention) to the methods that judges employ to derive those contents, and almost no attention to the philosophical aspects of judges’ interpretive methods. This article attempts to redress this imbalance by giving a distinctly philosophical description of the principal methods of constitutional interpretation that judges are inclined to follow in these two countries, and by developing the important distinction between the interpretation and the reception of a constitutional text. The act of interpretation is …


Va Savoir! - The Adage "Jura Novit Curia" In Contemporary France, Douglas Brooker Oct 2005

Va Savoir! - The Adage "Jura Novit Curia" In Contemporary France, Douglas Brooker

ExpressO

The Civilian adage jura novit curia – the court knows the law – for all that it is well recognised in France does not receive much scrutiny. This is unusual first because some claim it expresses a fundamental principle of French law and secondly because rules and practices associated with jura novit curia are controversial. The paper remedies the scholarly deficit, scrutinising seven definitions of jura novit curia to catalogue for the first time the divergent meanings associated with the adage and to analyse their status in French law and legal culture. While many meanings are attributed to jura novit …


Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt Aug 2005

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

ExpressO

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt …


Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan Mar 2005

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

ExpressO

Abstract This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.


Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan Mar 2005

Compliance Theory And The Inter-American Court Of Human Rights, Morse Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law in relation to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.


Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan Mar 2005

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.


Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist Feb 2005

Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist

ExpressO

No abstract provided.