Jurisprudence Commons^™

Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu

Law Faculty Publications

Gulag: A History, the recipient of the 2004 Pulitzer Prize for general non-fiction, may be particularly well received by lawyers and law students because they can appreciate author Anne Applebaum's writing skills. Gulag reads like a lawyer's product: a conclusion replete with facts and arguments. Those who enjoy perfecting their legal skills while reading for pleasure should read this review. Gulag is, in essence, a successful legal brief.

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.

Accommodating The Unauthorized Use Of Copyrighted Works For Religious Purposes Under The Fair Use Doctrine And Copyright Act § 110(3), Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Market Fundamentalism And The Trips Agreement, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …

Loose Not The Floodgates, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The article examines the implications of the Supreme Court's decision in Lawrence v. Texas, which struck down sodomy laws, arguing that while the ruling was necessary, it raises concerns about the broader regulation of sexual conduct outside marriage. The author contends that such laws, despite rare enforcement, serve societal functions, including protecting marriage and providing moral boundaries that deter harmful behavior, particularly among young people.

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Oblivion Of Crime As Crime Of Oblivion, Néstor A. Braunstein

Cardozo Law Review

No abstract provided.

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …

Memorandum Of Argument, Supreme Court Of Canada, In Re James R. Demers, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Ressentiment, The Superego, And Totalitarianism: George Orwell's 1984, Sinkwan Cheng

Cardozo Law Review

No abstract provided.

Nietzsche And Salomé Laws Of The Father: Sublimation, Narcissism And Idealization, Theresa Aiello

Cardozo Law Review

No abstract provided.

Nietzsche Niëzky Nijinsky, C. W. Maris Van Sandelingenambacht

Cardozo Law Review

No abstract provided.

Notes On The Clerical Body Of The Law, Lior Barshack

Cardozo Law Review

No abstract provided.

Thinking Like A Lawyer, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley

Faculty Articles and Other Publications

One cannot adequately consider whether the current administration of the death penalty in America measures up to modern notions of decency without doing so in light of the revolution that has occurred over the past decade in the American criminal-justice system - the Innocence Revolution. Up through the 1990s, as a society, we believed our criminal-justice system was highly accurate, but the recent advent of DNA testing and other advanced technologies has demonstrated the naiveté of such beliefs. This article will discuss the history of the Innocence Revolution, examine the impact of that revolution on our society, and ask: "What …

Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg

UIC Law Review

No abstract provided.

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Holmes On Natural Law, Robert P. George

Villanova Law Review (1956 - )

No abstract provided.

Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, Christopher Roederer

Seattle University Law Review

This paper explores borrowing a meta-theoretical approach to theory from the natural and social sciences in order to provide a framework within which to situate and evaluate the various theories one encounters in the field of law and jurisprudence. Often it is the case that students of jurisprudence go from one school or theory to another with one of three responses: (1) this makes no sense to me; (2) this makes some sense, but what is the point or relevance; or (3) this makes sense and seems true, but so do many of the schools, theories, and theorists we have …

Philosophy And Opinions, Warren Ortland

William Mitchell Law Review

Review of Law, Pragmatism, and Democracy. By Richard A. Posner. Harvard University Press, 2003. 398 Pages. $35.00.

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of this essay: …

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

Re-Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives?

Justice -- and more particularly legal justice -- is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the …

A Future Foretold: Neo-Aristotelian Praise Of Postmodern Legal Theory, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

A Brief History Of Gender Law Journals: The Heritage Of Myra Bradwell's Chicago Legal News, Richard H. Chused

Articles & Chapters

No abstract provided.