Law Commons^™

The Santa Clara, 2024-01-19, Santa Clara University

The Santa Clara

No abstract provided.

The Use And Abuse Of Tradition: A Comment On Degirolami’S Traditionalism Rising, Andrew Koppelman

The Journal of Contemporary Legal Issues

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method.”

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

The Forgotten Path Of Liberal Conservatism: What Yoram Hazony Ignores, Daniel J. Mahoney

The Journal of Contemporary Legal Issues

Today, in academic and intellectuals circles it is a besieged minority that affirms that the freest, most prosperous, most self-critical societies in the history of the world have been bequeathed a patrimony worth preserving. We have lost a meaningful and robust sense of what constitutes the West as the West (in fact, the term itself has no real resonance with the younger generations). The “Other” in faraway places, to use a fashionable abstraction, is beyond criticism since cultural and moral criticism are in those cases de rigueur; but the appropriate response to the faults of rule-of-law societies in the …

Deontology In Graphs: An Elucidation, Alec Walen

The Journal of Contemporary Legal Issues

Representing conceptual relationships in graphic form can be clarifying. The exercise can make the graph composer and the graph reader ask questions they otherwise might not have asked. Of course, graphs also require the composer to make choices: what do you put in, what do you merely approximate, what do you try to make precise, what might look more precise than you mean to be? These choices need to be explained and defended to make the graphs meaningful representational tools. But if explained and defended, graphs can provide a distinctively helpful tool, especially to those like moral philosophers who tend …

On Preserving A Political Community In Revolutionary Times, Scott Yenor

The Journal of Contemporary Legal Issues

Among the hardest things to do in politics is to understand the current situation. Partisan loyalties cloud perspective. Political actors make overwrought charges in order to rile up their partisans. Things that seem important often are not, while small changes can lead to political revolutions. Revolutions often come without countries or political communities knowing, until it is too late.

Revitalizing The Right, David Azerrad

The Journal of Contemporary Legal Issues

Debating the nature of conservatism may well be the favorite hobby of American conservatives. While the question will never be resolved to anyone’s satisfaction, it is a pleasant enough pastime to detract from the failures of the American conservative movement to conserve much anything of worth (unless you count the movement itself, in all its sinecurial grifting splendor, as something of worth).

Progressivism, Conservatism, And Democracy, William Voegeli

The Journal of Contemporary Legal Issues

“Conserve” is a transitive verb, one that conveys little unless followed by a direct object. The meaning of conservatism then, depends on what conservatives want to conserve: why it’s valuable, therefore meriting conservation; and why it’s vulnerable, therefore requiring conservation.

The answer to that question will vary from one time and place to another. During the Cold War, American conservatives bristled when newspapers referred to the most inflexible, doctrinaire Soviet leaders as the Kremlin’s “conservatives.” But this journalistic shorthand wasn’t absurd: it’s hard to identify a conservative essence discernible in all political settings. A skeptical, wary attitude regarding change …

The Acquisition Of Twitter: The Legal Interplay Between Elon Musk, Shareholders, Employees, And The Government, Florence Shu-Blankson

University of Miami Business Law Review

This article examines the acquisition process of Twitter by Elon Musk. It will analyze the legal validity of Musk’s initial claims for rescinding his offer, as well as Twitter’s defense arguments. It will consider questions such as: Did Twitter cause a material adverse effect to its operations that would be a basis for Musk to avoid the deal? Did Musk run afoul of any regulatory requirements under the Securities and Exchange Commission (SEC) and Federal Trade Commission (FTC) regulations? What impact did the ultimate sale of Twitter have on other stakeholders, such as corporate executives and non-executives, shareholders, employees. The …

Virtual Stardom: The Case For Protecting The Intellectual Property Rights Of Digital Celebrities As Software, Alexander Plansky

University of Miami Business Law Review

For the past several decades, technology has allowed us to create digital human beings that both resemble actual celebrities (living or deceased) or entirely virtual personalities from scratch. In the near future, this technology is expected to become even more advanced and widespread to the point where there may be entirely virtual celebrities who are just as popular as their flesh-and-blood counterparts—if not more so. This raises intellectual property questions of how these near-future digital actors and musicians should be classified, and who will receive the proceeds from their performances and appearances. Since, in the near-term, these entities will probably …

V.24-1, 2023 Masthead

The Journal of Contemporary Legal Issues

No abstract provided.

The Social Clerisy: Conservative Political Philosophy As A Philosophy Of Pluralism And The Social Group, Luke C. Sheahan

The Journal of Contemporary Legal Issues

Conservative political philosophers should be counted among, as Nisbet writes, “those thinkers who have resisted the appeal of the One, the unitary and monistic, and have found not merely reality but freedom and justice and equity to lie in plurality.” They should take as their starting point Nisbet’s tradition of the plural community. Given our place in history, following the increasing alienation and decline of social groups chronicled by Putnam and others, conservatives should feel free to pillage the ideas of pluralist thinkers outside the conservative tradition. Nisbet admits repeatedly throughout the decades of his long career that there seems …

Traditionalism Rising, Marc O. Degirolami

The Journal of Contemporary Legal Issues

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

Conservatives Divide On Matters Of Principle, Maimon Schwarzschild

The Journal of Contemporary Legal Issues

The conservative phenomenon in the United States in the years since the Second World War has entailed—I hesitate to say “embraced”—a variety of diverging views, preoccupations, and commitments, some of them at least in tension with, if not actually opposed to, one another. This has been true for conservative writers, thinkers, and publicists; it has also been true for America’s conservative voting constituencies. For many decades, conservatives were often said to be subdivided between traditionalists and libertarians. There were (and are) diverging tendencies even among the traditionalists: these tendencies can be religious or secular, with styles and emphases that diverge …

Cardozo Law News Brief: January 19, 2024, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2024

Featured Faculty:

• Jessica Roth
• Pamela Foohey
• Burton Lipshie
• Michael Pollack
• Gabor Rona
• Richard Weisberg

Events:

• The 2024 Cardozo Colloquium on Global and Constitutional Theory
• The FAME Center Presents: An Evening with Steve Madden
• Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis?

From Alpha To Omegle: A.M. V. Omegle And The Shift Towards Product Liability For Harm Incurred Online, Preston Buchanan

University of Miami Business Law Review

But for the Internet, many of our interactions with others would be impossible. From socializing to shopping, and, increasingly, working and attending class, the Internet greatly facilitates the ease of our daily lives. However, we frequently neglect to consider that our conduits to the Internet have the potential to lead to harm and injury. When the Internet was in its infancy, and primarily was a repository of information, Congress recognized the threat of continual lawsuits against online entities stemming from the content created by their users. The Communications Decency Act of 1996 arose to mitigate the seemingly Herculean task for …

College Athlete Employment Model: An “Amateur” Attempt To Resolve The Exploitation Created By The Ncaa, Ryan Brida

University of Miami Business Law Review

The college sports industry is deeply rooted within the culture of the United States. Its popularity has only grown, which has led to business opportunities and vast economic wealth for many within the National Collegiate Athletic Association (“NCAA”). This wealth is mainly distributed among, but not limited to, NCAA executives, conference commissioners, university presidents, coaches, and athletic directors. The individuals actually taking part in the athletic contests, the college athletes, are excluded from this list. Specifically, looking at Division I college athletes, the harsh reality is that these young men and women are participating in a billion-dollar industry and not …

Conservatism, Ideology, Skepticism, Brandon Turner

The Journal of Contemporary Legal Issues

The occasion for this essay concerns the prospects of modern conservative political philosophy; more directly, it calls for the provision of “a systematic and comprehensive account of conservatism.” Given our present moment, at which the political parties and institutions of the political right seem increasingly unmoored from any philosophical anchor, such an occasion appears altogether appropriate. Yet there is good reason to think that accounts of conservatism will not be systematic in the way desired and will in fact tend to rule out entirely systematic approaches—at least according to the commonplace understanding of “systematic”—to government or political philosophy. The belief—often …

Contemporary Conservative Thought: The View From San Diego, William A. Galston

The Journal of Contemporary Legal Issues

At the conference on “Modern Conservative Political Philosophy” convened at the University of San Diego on September 16–17, 2022, eleven authors presented papers. They fall into four broad categories.

Three of the papers offer broad defenses of conservatism as it has been theorized and practiced in the United States since the 1950s. William Voegeli observes—accurately—that “by following their own premises, an increasingly postmodern Left and an increasingly premodern Right have ended up questioning the worth and feasibility of republican self-government.” This leaves the beleaguered Center, long the common ground between traditional liberals and traditional conservatives. According to Voegeli, this “increasingly …