Jurisprudence Commons^™

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 The universalism of the catholic world had been replaced by a plurality of subjective worldviews championed by individuals, groups, sects, and new social entities.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 …

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 …

"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.

Doubting Thomas: Confirmation Veracity Meets Performance Reality, Joyce A. Baugh, Christopher E. Smith

Seattle University Law Review

At the close of the United States Supreme Court's 1994 term, Justice Clarence Thomas became the center of news media attention for his important role as a prominent member of the Court's resurgent conservative bloc. More frequently than in past terms, Thomas's opinions articulated the conservative position for his fellow Justices. According to one report, "The newly energized Thomas has shown little hesitancy this term in leading the conservative charge. Another article referred to Thomas's "full-throated emergence as a distinctive and articulate judicial voice." Thomas's new prominence, assertiveness, and visibility have been attributed to his emergence from the shadows of …

The Denial Of A State Constitutional Right To Bail In Juvenile Proceedings: The Need For Reassessment In Washington State, Kathleen A. Baldi

Seattle University Law Review

Article I, section 20 of the Washington Constitution states that "[a]ll persons charged with crimes shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great." Despite seemingly unequivocal language that this constitutional provision is applicable to "all persons," the Washington Supreme Court, in Estes v. Hopp, declared that juveniles do not have a constitutional right to bail. The Estes court engaged in little constitutional analysis, but instead, reasoned that juvenile proceedings are civil in nature and that article 1, section 20 applies only in criminal proceedings. Central to the Estes …

The Rise And Fall Of The Chacoan State, John W. Ragsdale Jr

Faculty Works

No abstract provided.

An Epilogue To The Age Of Pound, Thomas A. Green

Articles

Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.

What's In A Name - Nothing Good If It's Friday: The Seventh Circuit Invalidates Good Friday Public School Holiday, 29 J. Marshall L. Rev. 1031 (1996), Joanne Yasus

UIC Law Review

No abstract provided.

The Death Penalty And The Interstate Agreement On Detainers Act: A Proposal For Change, 29 J. Marshall L. Rev. 499 (1996), Edward G. Hild

UIC Law Review

No abstract provided.

Death With Dignity: Aids And A Call For Legislation Securing The Right To Assisted Suicide, 29 J. Marshall L. Rev. 677 (1996), Jeremy A. Sitcoff

UIC Law Review

No abstract provided.

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

On The History Of Fathers' Rights And Mothers' Duty Of Care, Sibylla Flügge

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical evolution of custody rights in Germany, focusing on the shift from maternal preference to increasing recognition of fathers' rights. It argues that the legal system's move toward joint custody and equal parental rights reflects broader societal changes in gender roles, while also critiquing the potential backlash against women's emancipation. The analysis highlights how improvements in fathers' legal standing have often coincided with decreased obligations for men to actively care for children, raising concerns about the practical implications for mothers and children.

Democracy And Feminism , Tracy E. Higgins

Faculty Scholarship

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Conquering The Cultural Frontier: The New Subjectivism Of The Supreme Court In Indian Law, David H. Getches

Publications

For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what …

Of Legal History, Jurisprudence And Insanity – “Wrong Or Contrary To Law" In Section 84 Of The Penal Code Re-Considered, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

This article considers, from the perspectives of legal history and jurisprudence, longstanding controversy surrounding the interpretation of the phrase "wrong or contra to law" in section 84 of the Penal Code, and suggests that the evidence points to interpretation that "wrong" means "legally wrong" or "contrary to law". It also consid the practical implications that follow from such an interpretation, which implicatio would allow for some role, nevertheless, for extral

The Constitutionality Of Legislative Supermajority Requirements: A Defense, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Law And Economics: Nexus Of Science And Belief, Robert C. Downs

Faculty Works

No abstract provided.

Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green

Articles

The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although - as these two aspects of freedom are not entirely unrelated to each other - I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of …

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

Prediction And The Rule Of Law, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

A Definite And Permanent Idea - Invention In The Pharmaceutical And Chemical Sciences And The Determination Of Conception In Patent Law, 28 J. Marshall L. Rev. 687 (1995), Jackie Hutter

UIC Law Review

No abstract provided.

Looking Back In Pursuit Of The Art Of Law, Gordon A. Christenson

Faculty Articles and Other Publications

As part of the centennial celebration of the Washington College of Law, I am pleased to accept the invitation of The Law Review to revisit those six fascinating years of my deanship from 1971 to 1977. It is time for a backward glance in light of the profound changes that have since taken place in society, as well as in the Washington College of Law (WCL).

The Preemptive Effect Of Erisa On The Prevailing Wage Act, 29 J. Marshall L. Rev. 55 (1995), Scott D. Miller

UIC Law Review

No abstract provided.

The Minutemen, The National Guard And The Private Militia Movement: Will The Real Militia Please Stand Up, 28 J. Marshall L. Rev. 959 (1995), Chuck Dougherty

UIC Law Review

No abstract provided.