Law Commons^™

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

The Honor Of Private Law, Nathan Oman

Fordham Law Review

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …

Who Are Refugees?, Matthew Lister

Matthew J. Lister

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the …

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

San Diego Law Review

This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly …

Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine

Samuel J. Levine

Of the various movements that have surfaced in American legal theory in recent decades, law and economics has emerged as perhaps the most influential, leading some to characterize it as the dominant contemporary mode of analysis among American legal scholars. In this essay, Levine considers law and economics in the context of a comparative discussion of another prominent intellectual legal movement, the Brisker method of Talmudic analysis, which originated in Eastern Europe in the late nineteenth century and quickly developed into a leading method of theoretical study of Jewish law. The Brisker method takes its name from the city of …

Transversal Feminism And Transcendence, Deseriee A. Kennedy

Deseriee A. Kennedy

No abstract provided.

Rehumanizing Law: A Theory Of Law And Democracy (Preface & Introduction), Randy D. Gordon

Randy D. Gordon

Conference Program -- Association For The Study Of Law, Culture, & The Humanities 14th Annual Conference, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Association for the Study of Law, Culture, & the Humanities 14th Annual Conference

The UNLV William S. Boyd School of Law hosted the Association for the Study of Law, Culture & the Humanities 14th Annual Conference from March 11-12, 2011. The Association brings together more than 275 interdisciplinary scholars from around the world each year to discuss law and legal issues from a broad perspective. Scholars attended the meeting at UNLV from Australia, Canada, England, Ireland, Italy, New Zealand and Sweden. The theme of the conference, drawing on the work of Nan Seuffert of the University of Waikato, was "Boundaries and Enemies."

The Association for the Study of Law, Culture and the Humanities …

What Is Injustice?, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Throughout Western history, theorists have explained injustice by starting with some idea of justice. They have made justice fundamental, and the notion of injustice merely derivative of it. Since, after 2500 years of theory, we lack any consensus about what justice is, it would be easy to conclude that injustice is equally indeterminate.

However, injustice is not the sheer “opposite” or “negation” of justice. Plato set the stage for two millennia of justice theories by identifying “harmony” as justice’s essential attribute. Aristotle refined that project by adding the element of “measurement,” which has continued to structure programmatic justice theories through …

Cross Purposes & Unintended Consequences--Karl Llewellyn, Article 2 And The Limits Of Social Transformation, Danielle K. Hart

Danielle K Hart

Despite attempts to reform the law to eliminate hierarchies that subordinate groups of people, the law usually ends up reinstantiating those hierarchies. This “preservation through transformation” phenomenon occurs consistently, over time and across legal disciplines. Karl Llewellyn’s efforts at drafting Article 2 of the Uniform Commercial Code are no different. Llewellyn attempted a paradigm shift in contract formation when he sought to decouple contract law from its formalistic roots and bring it back in touch with reality on the ground. But in so doing, the law-in-action strand of Legal Realism ended up working at cross purposes with the other, critical …

Is International Law Really Law? Theorizing The Multi-Dimensionality Of Law, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

Formulaically Describing 21st Century Supreme Court Tax Jurisprudence Ii, 2001-2010., Andre L. Smith

Andre L. Smith

Abstract This article attempts to discover a deliberative formula in matters of taxation by culling the Supreme Court’s 14 federal tax opinions from 2001 to 2010 (Gitlitz v. Commissioner, Cleveland Indians Baseball v. United States, United Dominion Industries v. United States, United States v. Craft, United States v. Fior D’Italia, Boeing v. United States, United States v. Galletti, Banks v. Commissioner, Ballard v. Commissioner, EC Term of Years v. United States, Hinck v. United States, Clintwood Elkhorn v. United States, Knight v. United States, and Boulware v. United States). It continues the project Formulaically Expressing 21st Century Supreme Court Tax …

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine

Scholarly Works

No abstract provided.

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Scholarly Works

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that "the principles and policies they advocate and vote for can be supported by the political values of public reason." This so-called "duty of civility" obligates us to cast our votes on "constitutional questions and matters of basic justice" for reasons that we can explain in terms of the public good and the "ideals and principles expressed by society's conception of political justice." Rawls contrasts these public reasons with "nonpublic reasons" - such as "comprehensive religious and philosophical doctrines" - which he claims cannot …

Two Kinds Of Plain Meaning, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning--ordinary/popular meaning and expansive/legalist meaning--suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite …

Keynote Discussion: Just Exactly What Does A Transactional Lawyer Do?, William J. Carney, Ronald J. Gilson, George W. Dent

Faculty Scholarship

Panel discussion from the Center for Transactional Law and Practice at Emory University School of Law’s second biennial Transactional Law Conference, “Transactional Education: What's Next?” (June 2010).