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Articles 1 - 11 of 11
Full-Text Articles in Law
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Jogelmélet Jog Nélkül? [Legal Theory Without Law?], Péter Cserne
Péter Cserne
No abstract provided.
Under-The-Table Overruling, Christopher J. Peters
Under-The-Table Overruling, Christopher J. Peters
All Faculty Scholarship
In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …
Auschwitz As Nomos Of Modern Legal Thought, Tawia B. Ansah
Auschwitz As Nomos Of Modern Legal Thought, Tawia B. Ansah
Tawia B Ansah
The article is at the intersection of law, philosophy, and political theology. I ask: in what sense is Auschwitz “central” to philosophy within late modernity? What does this centrality suggest for juridical thought? The article explores the status of the camp – as “paradigm” and as “nomos” of late modernity – within the work of the Italian philosopher Giorgio Agamben, the reasons this status is refused by his legal critics, and the implications of both for late modern legal theory.
Reinterpretations Of St. Paul's Concept Of Law, Tawia B. Ansah
Reinterpretations Of St. Paul's Concept Of Law, Tawia B. Ansah
Tawia B Ansah
The article is at the intersection of law, philosophy, and theology. I examine the work of Giorgio Agamben and Alain Badiou on Paul’s Epistle to the Romans. Both approach Pauline law formalistically, but with very different ideas about what law is. Whereas Agamben sees continuities, Badiou sees breaks and ruptures, between law and ideas traditionally extrinsic to the realm of the juridical (grace, faith, love, etc.). But both apprehend a political significance of Paul to juridical thought within late modernity (postmodern and post-secular). I analyze their work, therefore, for its relevance to legal theory.
Auschwitz As Nomos Of Modern Legal Thought, Tawia B. Ansah
Auschwitz As Nomos Of Modern Legal Thought, Tawia B. Ansah
Tawia B. Ansah
The article is at the intersection of law, philosophy, and political theology. I ask: in what sense is Auschwitz “central” to philosophy within late modernity? What does this centrality suggest for juridical thought? The article explores the status of the camp – as “paradigm” and as “nomos” of late modernity – within the work of the Italian philosopher Giorgio Agamben, the reasons this status is refused by his legal critics, and the implications of both for late modern legal theory.
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
Eric A. Engle
Abstract: Legal interpretation in the United States changed dramatically between 1930 and 1950. The Great Depression and World War II unleashed radical critique (particularly prior to the war). Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and …
Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel
Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel
Faculty Scholarship
This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Happy Families - Translating Positive Psychology Into Family Law, Clare Huntington
Faculty Scholarship
Despite the well-documented finding in the field of positive psychology that close interpersonal relationships are significantly correlated with subjective well-being and thriving communities, scholars have yet to bring together positive psychology and family law. And what is family law if not the law of close interpersonal relationships? Positive psychology and related work have the potential to inform the what, the why, and the how of family law, but realizing the potential of positive psychology as a guide for family law involves challenges. In particular, it requires translating the descriptive science of psychology into the prescriptive policies of family law. This …
Punishing Family Status, Jennifer M. Collins, Ethan J. Leib
Punishing Family Status, Jennifer M. Collins, Ethan J. Leib
Faculty Journal Articles and Book Chapters
This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …
The Great Attributional Divide: How Legal Policy Debates Are Shaped By Divergent Views Of Human Nature, Adam Benforado, Jon Hanson
The Great Attributional Divide: How Legal Policy Debates Are Shaped By Divergent Views Of Human Nature, Adam Benforado, Jon Hanson
Adam Benforado
This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people's dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should …
E-J. Mestmäcker: A Legal Theory Without Law (Book Review), Péter Cserne
E-J. Mestmäcker: A Legal Theory Without Law (Book Review), Péter Cserne
Péter Cserne
This is a book review of Ernst-Joachim Mestmäcker's A Legal Theory without Law: Ponser v. Hayek on Economic Analysis of Law (Tübingen: Mohr 2007)