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Jurisprudence

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Articles 331 - 360 of 378

Full-Text Articles in Constitutional Law

Judging In The Good Society: A Comment On The Jurisprudence Of Justice Scalia, Stephen Wizner Jun 1991

Judging In The Good Society: A Comment On The Jurisprudence Of Justice Scalia, Stephen Wizner

Cardozo Law Review

No abstract provided.


"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers Jan 1991

"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers

Law Faculty Scholarly Articles

Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …


Fourth, Fifth, And Sixth Amendments, William E. Hellerstein Jan 1991

Fourth, Fifth, And Sixth Amendments, William E. Hellerstein

Touro Law Review

No abstract provided.


The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West Jan 1991

The Ideal Of Liberty: A Comment On Michael H. V. Gerald D., Robin West

Georgetown Law Faculty Publications and Other Works

What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, …


Force Of Law: The "Mystical Foundation Of Authority", Jacques Derrida Jul 1990

Force Of Law: The "Mystical Foundation Of Authority", Jacques Derrida

Cardozo Law Review

No abstract provided.


On The Critical Tribunal, Stephen Watson Jul 1990

On The Critical Tribunal, Stephen Watson

Cardozo Law Review

No abstract provided.


Resisting Theory, Jonathan Culler Jul 1990

Resisting Theory, Jonathan Culler

Cardozo Law Review

No abstract provided.


Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley Jan 1990

Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley

Journal Articles

Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …


Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas Jan 1990

Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas

Touro Law Review

No abstract provided.


Assumption Of Risk In New York Under Cplr 1411: Complete Bar Or Comparative Fault?, Thomas P. Lalor Jan 1990

Assumption Of Risk In New York Under Cplr 1411: Complete Bar Or Comparative Fault?, Thomas P. Lalor

Touro Law Review

No abstract provided.


Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West Jan 1990

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …


The Meaning Of Equality And The Interpretive Turn, Robin West Jan 1990

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …


Meeting The Enemy, Robert F. Nagel Jan 1990

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.


Mastery, Slavery, And Emancipation, Guyora Binder Mar 1989

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …


Judge Richard Posner's Wealth Maximization Principle: Another Form Of Utilitarianism?, Robin F. Grant Feb 1989

Judge Richard Posner's Wealth Maximization Principle: Another Form Of Utilitarianism?, Robin F. Grant

Cardozo Law Review

No abstract provided.


Introduction, Monroe E. Price Oct 1988

Introduction, Monroe E. Price

Cardozo Law Review

No abstract provided.


Rights-Talk, Jane B. Baron, Richard K. Greenstein Jan 1988

Rights-Talk, Jane B. Baron, Richard K. Greenstein

Villanova Law Review (1956 - )

No abstract provided.


Cannibal Moves: An Essay On The Metamorphoses Of The Legal Distinction, Pierre Schlag Jan 1988

Cannibal Moves: An Essay On The Metamorphoses Of The Legal Distinction, Pierre Schlag

Publications

No abstract provided.


Preface, Monroe E. Price Oct 1987

Preface, Monroe E. Price

Cardozo Law Review

No abstract provided.


The First Amendment Jurisprudence Of Judge Robert H. Bork, Michael W. Mcconnell Oct 1987

The First Amendment Jurisprudence Of Judge Robert H. Bork, Michael W. Mcconnell

Cardozo Law Review

No abstract provided.


The Bork Nomination, Ronald M. Dworkin Oct 1987

The Bork Nomination, Ronald M. Dworkin

Cardozo Law Review

No abstract provided.


Judge Robert H. Bork's Decisions In Which He Wrote No Opinion: An Analysis Of The Regulatory And Benefit Cases, Robert A. Anthony Oct 1987

Judge Robert H. Bork's Decisions In Which He Wrote No Opinion: An Analysis Of The Regulatory And Benefit Cases, Robert A. Anthony

Cardozo Law Review

No abstract provided.


Fish V. Zapp: The Case Of The Relatively Autonomous Self, Pierre Schlag Jan 1987

Fish V. Zapp: The Case Of The Relatively Autonomous Self, Pierre Schlag

Publications

No abstract provided.


The Idea Of The "Private": A Discussion Of Stateaction Doctrine And Separate Sphere Ideology, Hester Lessard Sep 1986

The Idea Of The "Private": A Discussion Of Stateaction Doctrine And Separate Sphere Ideology, Hester Lessard

Dalhousie Law Journal

This essay is a discussion of the formalization in law of a dichotomy between a natural, private order on the one hand, and a public sphere of state action and citizenship on the other. The discussion takes place in the context of equality rights and of the philosophical tensions that underlie the delineation of rights in general. Two legal phenomena are examined: state action doctrine as it has developed in American equal protection jurisprudence under the Fourteenth Amendment and separate sphere ideology as a rationalization for sexual discrimination. Under each doctrine, judicial denial of relief is predicated on a pre-ordained …


Searching For The Status Quo, Jeremy Paul Jan 1986

Searching For The Status Quo, Jeremy Paul

Cardozo Law Review

No abstract provided.


Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking Jun 1985

Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking

West Virginia Law Review

No abstract provided.


Taking Hegel Seriously: Reflections On Beyond Objectivism And Relativism, Drucilla Cornell Jan 1985

Taking Hegel Seriously: Reflections On Beyond Objectivism And Relativism, Drucilla Cornell

Cardozo Law Review

No abstract provided.


Rules And Standards, Pierre Schlag Jan 1985

Rules And Standards, Pierre Schlag

Publications

No abstract provided.


Framers Intent: The Illegitimate Uses Of History, Pierre Schlag Jan 1985

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.


The Formulaic Constitution, Robert F. Nagel Jan 1985

The Formulaic Constitution, Robert F. Nagel

Publications

The Supreme Court's constitutional jurisprudence of late has been filled with formulae - tests that must be met, hurdles that must be overcome. This multi-pronged analytical technique is, according to Professor Nagel, distancing the Justices from both their audience, the American public, and their text, the Constitution. In an effort to retain the authority of that text, the Court is instead displacing it; in an effort to persuade that audience, the Court is instead excluding it. Furthermore, the Court's attempt to constrain judges has actually created an irresponsible judicial freedom, while its attempt to locate a middle ground between the …