Jurisprudence Commons^™

Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Between Truth And Provocation: Reclaiming Reason In American Legal Scholarship, Francis J. Mootz Iii

Scholarly Works

Truth has regained a strong voice in American legal scholarship. Like a groggy patient slowly emerging from a traumatic operation, legal theory is being coaxed back to consciousness by Dan Farber and Suzanna Sherry. They are fighting the debilitating illness of radical multiculturalism and its attendant relativism; they proclaim that the cure can be found in the power of truth, the force or reason, and the integrity of the word. Unfortunately, the patient is unlikely to recover while in the care of Farber and Sherry, even though their operation must be judged a success on its own terms. By equating …

"A Revolution Which Seeks To Abolish Law, Must End Necessarily In Despotism": Louisa Mccord And Antebellum Southern Legal Thought, Alfred L. Brophy

Cardozo Journal of Equal Rights & Social Justice

Louisa McCord's essays provide a unique lens into the legal and political thought of antebellum Southern society, particularly her defense of slavery and the role of law in maintaining social order. She argued that law should ensure basic fairness in market transactions but should not interfere with the institution of slavery, which she viewed as a matter of sentiment rather than legal regulation. McCord's work challenges the notion that legal history is confined to the common law tradition, emphasizing the importance of understanding law as part of a broader societal outlook.

"Lit. Theory" Put To The Test: A Comparative Literary Analysis Of American Judicial Tests And French Judicial Discourse, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce …

The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer

Journal Articles

John Howard Yoder, prophet and theologian, died in his office at Notre Dame on December 30, 1997, the day after his seventieth birthday. Peter Steinfels's obituary in the New York Times of January 7, 1998, described my friend and colleague Yoder as "a Mennonite theologian whose writings on Christianity and politics had a major impact on contemporary Christian thinking about the church and social ethics." Steinfels did not describe Yoder's thought as jurisprudence; neither, for that matter, did Yoder. But there was (and is), throughout Yoder's scholarship, an implicit theology of law, a jurisprudence. A jurisprudence that is particularly noticeable …

Lynching Ethics: Toward A Theory Of Racialized Defenses, Anthony V. Alfieri

Michigan Law Review

So much depends upon a rope in Mobile, Alabama. To hang Michael Donald, Henry Hays and James "Tiger" Knowles tied up "a piece of nylon rope about twenty feet long, yellow nylon." They borrowed the rope from Frank Cox, Hays's brother-in-law. Cox "went out in the back" of his mother's "boatshed, or something like that, maybe it was in the lodge." He "got a rope," climbed into the front seat of Hays's Buick Wildcat, and handed it to Knowles sitting in the back seat. So much depends upon a noose. Knowles "made a hangman's noose out of the rope," thirteen …

Legal Attack On Cost Containment Mechanisms: The Expansion Of Liability For Physicians And Managed Care Orgainizations, 31 J. Marshall L. Rev. 207 (1997), Allison Faber Walsh

UIC Law Review

No abstract provided.

Habeas Corpus And The New Federalism After The Anti-Terrorism And Effective Death Penalty Act Of 1996, 30 J. Marshall L. Rev. 337 (1997), Marshall J. Hartman, Jeanette Nyden

UIC Law Review

No abstract provided.

An Analysis Of People, For Michigan Republic, Ex Rel V. State Of Michigan, 30 J. Marshall L. Rev. 937 (1997), Phillip A. Hendges

UIC Law Review

No abstract provided.

This Is Who Will Die When Doctors Are Allowed To Kill Their Patients, 31 J. Marshall L. Rev. 95 (1997), Michael Mcgonnigal

UIC Law Review

No abstract provided.

United States, Puerto Rico, And The Territorial Incorporation Doctrine: Reaching A Century Of Constitutional Authoritarianism, 31 J. Marshall L. Rev. 55 (1997), Gabriel A. Terrasa

UIC Law Review

No abstract provided.

Reflections On A Quarter-Century Of Constitutional Regulation Of Capital Punishment, 30 J. Marshall L. Rev. 399 (1997), Joseph Bessetre, Stephen Bright, George Kendall, William Kunkle, Carol Steiker, Jordan Steiker

UIC Law Review

No abstract provided.

Gacy V. Dahmer: An Informed Response, 30 J. Marshall L. Rev. 331 (1997), William J. Kunkle Jr.

UIC Law Review

No abstract provided.

Anasazi Jurisprudence, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Post-Verdict Interviews: The Key To Understanding The Decision Behind The Verdict, 30 J. Marshall L. Rev. 507 (1997), Christine J. Iversen

UIC Law Review

No abstract provided.

Who’S Afraid Of Humpty Dumpty: Deconstructionist References In Judicial Opinions, Madeleine M. Plasencia

Articles

This Article examines the treatment of deconstruction in United States judicial opinions.' A handful of cases have directly referred to the French philosopher and literary theorist, Jacques Derrida.2 In each of these cases, the court has rejected Derrida's philosophy, apparently out of a fear that recognition of any legitimacy of Derrida's thoughts would lead to the self-destruction of the legal world. These courts have misunderstood that consideration or recognition of Derrida's philosophy in the legal context would not unavoidably lead to the end of all meaningful legal discourse in the United States. A discussion of these cases will serve as …

How Law Is Formal And Why It Matters, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Journal Articles

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …

Notre Dame Lawyer - Fall/Winter 1996, Notre Dame Law School

Notre Dame Lawyer

Oh! To Be in England ...

Living and Learning Law in London

Law Can't Do Morality's Job

Keeping the Faith

Faculty Profile: John Mitchell Finnis

After Hours
Dean David T. Link and Habitat for Humanity

Alumni Profiles
Patrick McCartan and Scott Medlock

Student Profiles
The Road Less Travelled

The Kresge Law Library-Progress and Challenges

What’S Pragmatic About Legal Pragmatism?, David Luban

Cardozo Law Review

Does legal pragmatism have anything at all to do with pragmatism? Both Thomas Grey and Richard Posner seem to suggest that in important respects the answer is no. Grey tells us that even a devout anti-pragmatist in matters ontological can endorse legal pragmatism, while Posner adds the converse, that pragmatic philosophy may at times impel a judge to decide cases like a formalist. These conclusions suggest that talk of legal pragmatism may simply be a pun on what philosophers take pragmatism to be. Lest this appear a far-fetched suggestion, remember that in philosophy the word "realism" often refers to the …

The Vital Common Law: Its Role In A Statutory Age, M. Stuart Madden

University of Arkansas at Little Rock Law Review

No abstract provided.

Liberties And Popular Sovereignty: On Jurgen Habermas’S Reconstruction Of The System Of Rights, Ingeborg Maus

Cardozo Law Review

The justifications Jurgen Habermas gives for a system of rights bring together the central intentions of his theory of law. The chapter of his book which provides these justifications is devoted in part to developing the underlying tension between "facticity and validity" as the basic structure of law taking the extreme and, for that reason, illuminating aspect of the guarantee of liberty through coercion. It also elucidates the motives for reestablishing the centuries-old connection between legal theory and social theory in the context of the most topical social problems. Whereas all subsectors of contemporary society have been juridified on a …

Habermas And The Counterfactual Imagination, Michael K. Power

Cardozo Law Review

The epistemological problem of critical theories is easy to state but hard to resolve. On the one hand, if the theories are too descriptive and draw their conceptual resources from the ideas and institutions which currently exist, they lose their critical force. While they may provide elaborate reconstructions of the structure of social practices, they remain internal to these practices, part of a field of knowledge in which, at worst, theory is merely a form of public relations. On the other hand, if they articulate forms of critique that are entirely external to the systems of knowledge and practice that …

Law And Political Culture, Dick Howard

Cardozo Law Review

A decade ago Habermas announced a project in his The Theory of Communicative Action. Those who slipped into the habit of talking about this project as his Rechtsphilosophie may be surprised by the sobriety of Habermas's choice for the book's title. The foreword to Faktizitat und Geltung rejects any comparison with Hegel's systematic Grundlinien der Philosophie des Rechts. Habermas contrasts his "methodical-pluralistic" proposals to the idealistic concepts of Geist and Sittlichkeit, which are unable to account for complex modern societies. The apparent modesty of Habermas's claims is underlined by his subtitle, Contributions to a Discourse Theory of …

Communicative Power And The Concept Of Law, Ulrich K. Preub

Cardozo Law Review

The idea that the law was founded on the self-interest and the will of rational individuals was first developed and proven in the social contract theories of Hobbes, Locke, and Rousseau. These theorists reacted-admittedly, in extremely different ways-to the problem of finding a collective basis in a world which had lost its common religious fundaments and the economic basis of feudal communal life. The European world of the seventeenth century had fallen apart. The universalism of the catholic world had been replaced by a plurality of subjective worldviews championed by individuals, groups, sects, and new social entities. How could one …

The Retrieval Of The Democratic Ethos, Richard J. Bernstein

Cardozo Law Review

For over thirty years I have been a sympathetic although critical reader of Habermas. Initially, I was struck by his nuanced insight into the American pragmatic tradition and his appropriation of the radical democratic ethos of the pragmatic movement. I felt then, and still believe, that Habermas has a more profound and subtle understanding of what is best and most enduring in pragmatism-especially in the thought of Peirce, Dewey, and Mead-than many of my American colleagues. I was also attracted to Habermas for other reasons. He is a dialectical thinker who has the courage to buck fashionable trends-who refuses to …

"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

Articles

Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

Conflicts And The Federal Circuit, 29 J. Marshall L. Rev. 835 (1996), Glenn L. Archer Jr.

UIC Law Review

No abstract provided.

Judicial Usurpation Of The F.T.C.'S Authority: A Return To The Rule Of Reason, 30 J. Marshall L. Rev. 283 (1996), Jeffrey H. Liebling

UIC Law Review

No abstract provided.

Taking The Public Out Of Determining Government Policy: The Need For An Appropriate Scope Of Bargaining Test In The Illinois Public Sector, 29 J. Marshall L. Rev. 531 (1996), Eric C. Scheiner

UIC Law Review

No abstract provided.