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Articles 1291 - 1320 of 1661
Full-Text Articles in Courts
Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl
Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl
Cardozo Law Review
This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …
Procedure, Politics, And Power, Stephen B. Burbank
Procedure, Politics, And Power, Stephen B. Burbank
Journal of Legal Education
No abstract provided.
A Subversive Strand Of The Warren Court, Gary Peller
A Subversive Strand Of The Warren Court, Gary Peller
Washington and Lee Law Review
No abstract provided.
Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams
Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams
Washington and Lee Law Review
No abstract provided.
Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen
Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen
Washington and Lee Law Review
No abstract provided.
The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown
The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown
Washington and Lee Law Review
No abstract provided.
Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman
Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman
Washington and Lee Law Review
No abstract provided.
How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright
How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright
Washington and Lee Law Review
No abstract provided.
No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan
No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan
Faculty Works
No abstract provided.
Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter
Cardozo Law Review
No abstract provided.
Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick
Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick
Washington and Lee Law Review
No abstract provided.
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.
Michigan Law Review
Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …
Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater
Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater
The Journal of Appellate Practice and Process
No abstract provided.
Judiciary School: A Proposal For A Pre-Judicial Ll.M. Degree, Marc T. Amy
Judiciary School: A Proposal For A Pre-Judicial Ll.M. Degree, Marc T. Amy
Journal of Legal Education
No abstract provided.
Losing Sight Of The Utilitarian Forest For The Retributivist Trees: An Analysis Of The Role Of Public Opinion In A Utilitarian Model Of Punishment, Andrew R. Strauss
Losing Sight Of The Utilitarian Forest For The Retributivist Trees: An Analysis Of The Role Of Public Opinion In A Utilitarian Model Of Punishment, Andrew R. Strauss
Cardozo Law Review
No abstract provided.
Juries, Justice And Multiculturalism, Nancy S. Marder
Juries, Justice And Multiculturalism, Nancy S. Marder
All Faculty Scholarship
No abstract provided.
The Adversary System As A Means Of Seeking Truth And Justice, 35 J. Marshall L. Rev. 147 (2002), Robert G. Johnston, Sara Lufrano
The Adversary System As A Means Of Seeking Truth And Justice, 35 J. Marshall L. Rev. 147 (2002), Robert G. Johnston, Sara Lufrano
UIC Law Review
No abstract provided.
Recognition And Enforcement Of Foreign Judgments In The United States: The Need For Federal Legislation, 37 J. Marshall L. Rev. 229 (2003), Violeta I. Balan
Recognition And Enforcement Of Foreign Judgments In The United States: The Need For Federal Legislation, 37 J. Marshall L. Rev. 229 (2003), Violeta I. Balan
UIC Law Review
No abstract provided.
The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson
The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson
UIC Law Review
No abstract provided.
African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami
African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami
Michigan Journal of International Law
Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domestic application of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.
Textual Imagination, Mary D. Fan
Textual Imagination, Mary D. Fan
Articles
Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner
Faculty Articles
No abstract provided.
Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy
Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy
Law Faculty Scholarly Articles
Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …
Privatization And Political Accountability, Jack M. Beermann
Privatization And Political Accountability, Jack M. Beermann
Faculty Scholarship
This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …
The Power Of A Federal Appellate Court To Direct Entry Of Judgment As A Matter Of Law: Reflections On Weisgram V. Marley Co., Robert A. Ragazzo
The Power Of A Federal Appellate Court To Direct Entry Of Judgment As A Matter Of Law: Reflections On Weisgram V. Marley Co., Robert A. Ragazzo
The Journal of Appellate Practice and Process
Federal district court judges have several mechanisms for controlling civil jury functions. One mechanism is the entry of judgment as a matter of law. Federal appellate courts are able to reverse and direct entry of judgment as a matter of law. This article examines the appropriateness of such authority.
Why Judges Don't Like Petitions For Rehearing, Richard S. Arnold
Why Judges Don't Like Petitions For Rehearing, Richard S. Arnold
The Journal of Appellate Practice and Process
Petitions for en banc rehearings are rarely granted. A Senior Judge for the United States Court of Appeals for the Eighth Circuit provides a history and reasoning of the rehearing process and his personal observations on those petitions and processes in today's court.
Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin
Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin
The Journal of Appellate Practice and Process
Judicial review allows the Supreme Court of the United States to perform revolutionary constitutional change. The United States Courts of Appeals could also be a vehicle for revolutionary constitutional adjudication.
In The Wake Of Crosby V. National Foreign Trade Council: The Impact Upon Selective Purchasing Legislation Throughout The United States, 34 J. Marshall L. Rev. 827 (2001), Ako Miyaki-Murphy
In The Wake Of Crosby V. National Foreign Trade Council: The Impact Upon Selective Purchasing Legislation Throughout The United States, 34 J. Marshall L. Rev. 827 (2001), Ako Miyaki-Murphy
UIC Law Review
No abstract provided.
E-Obviousness, Glynn S. Lunney Jr.
E-Obviousness, Glynn S. Lunney Jr.
Michigan Telecommunications & Technology Law Review
As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …