Jurisprudence Commons^™

The Liability Of Blood Banks And Manufacturers Of Clotting Products To Recipients Of Hiv-Infected Blood: A Comparison Of The Law And Reaction In The United States, Canada, Great Britain, Ireland, And Australia, 27 J. Marshall L. Rev. 465 (1994), Joseph Kelly

UIC Law Review

No abstract provided.

Freud As Law Professor: An Alternative History, Charles Yablon

Cardozo Law Review

We are gathered here today to pay tribute to one of the great legal minds of the twentieth century. In his long and fruitful career as lawyer, law professor, and legal theorist, Sigmund Freud literally revolutionized both the theory and practice of the legal profession. His contributions are to be found everywhere; from his early work on alternative dispute resolution, to his fundamental reconceptualization of the lawyer-client relationship, to his trenchant critiques of the law and economics movement, even the standard fifty-minute billable hour are all reflections of his vast influence on law and legal theory.

Overview Of The Role Of Precedent In The Legal System Of The United States, Ana Elena Fierro

LLM Theses and Essays

Traditionally, legal systems have been classified as either Common Law or Civil Law; scholars distinguish these systems based on their origins, as well their attitudes towards stare decisis. Common law considers precedent as a source of binding rules, while civil law does not. However, some scholars consider the methods for legal reasoning to be almost the same in every legal system. These scholars maintain that regardless of the source of law in a particular country, once a judge determines that the facts of one case are similar to those regulated by a certain rule, the judge will apply that particular …

Sons Of Writ, Sons Of Wrath: Pierre Legendre’S Critique Of Rational Law-Giving, Anton Schutz

Cardozo Law Review

By nature we have been sons of wrath, according to a thoroughly explored passage of Pauline theology. I should like to put this text to a test. My purpose in this article is to view the work of a twentieth-century Sorbonne Professor of Law through the lens of this Pauline text. Clearly, such a procedure assumes some sort of extraordinary similarity of preoccupation as between these two thinkers. It assumes that the semantic components, filius and ira, and the question of their relationship, are equally crucial to both figures: to the fervent apostle and epistolographer who happened to have …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

On War And Justice, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 15, Issue 5

Cardozo Law Review

No abstract provided.

Doctor Duxbury’S Cure: Or, A Note On Legal Historiography, Peter Goodrich

Cardozo Law Review

No abstract provided.

Situating Political Liberalism, Lawrence B. Solum

Faculty Scholarship

We have another book by John Rawls, Political Liberalism, published in 1993 and the subject of this symposium. Already, Political Liberalism has been widely cited in law journals and reviewed in a variety of publications. This Foreword situates Political Liberalism in contemporary legal and political discourse. Part I places Rawls's new book in context, briefly recalling the argument of A Theory of Justice, and then exploring the influence of Rawls's work on contemporary legal thought. Part II provides a brief outline of Political Liberalism, relating its themes to the issues raised by Rawls's prior work. Part III introduces the contributions …

The New Legal Hermeneutics, Francis J. Mootz Iii

Scholarly Works

Gregory Leyh has edited a volume of essays commissioned “to examine the intersections between contemporary legal theory and the foundations of interpretation” as explored in contemporary hermeneutics. The essays are diverse and multidisciplinary, but each sheds light on perplexing issues of legal interpretation that have exhausted commentators in recent years. The contributors share a broad agreement that we must reject the picture of law as an autonomous, insulated discourse and instead must regard legal discourse as one of many interrelated practices rooted in our character as interpretive beings.

Each contributor addressees the central concerns defined by the leading philosopher of …

Machiavellian Jurisprudence: The United States Supreme Court's Doctrinal Approach To Political Speech Under The First Amendment, Garth Molander

Touro Law Review

No abstract provided.

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins

Faculty Scholarship

Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …

Faith In Reason: The Process Tradition In American Jurisprudence, Neil Duxbury

Cardozo Law Review

Even the most cursory survey of the history of jurisprudence reveals a remarkable tendency on the part of legal philosophers to develop concepts, for want of a better word, which are purportedly foundational to the existence of a legal system. Positivists and natural lawyers alike have long been committed to the search for that special concept which stands as the fons et origo of law. Legal philosophers typically frame this search in terms of a quest to discover something singular; and when they do try to conceive of a legal system as founded on a plurality of concepts, their assertions, …

Constructing An Ideal Of Public Reason, Lawrence B. Solum

Faculty Scholarship

In deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term "public reason." The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination.

A Survey Of Article Iii Procedural Issues Considered At The Federal Circuit During Its First Decade, 27 J. Marshall L. Rev. 25 (1993), Jerry R. Selinger

UIC Law Review

No abstract provided.

Rethinking The Rule Of Law: A Demonstration That The Obvious Is Plausible, Francis J. Mootz Iii

Scholarly Works

In this Article, I defend the Rule of Law from its detractors in the academy by uncovering and criticizing the unsound presuppositions driving their critiques. I acknowledge that these critiques raise two different problems for those who defend the plausibility of the Rule of Law: The problem of ensuring legal innovation and the problem of supplying effective constraint. In response to these problems, I locate our faith in the Rule of Law in the hermeneutical practice in which we are engaged as lawyers. Jurisprudential characterizations of the problems of constraint and innovation are misguided reactions to the narrow Enlightenment conception …

Is The Rule Of Law Possible In A Postmodern World?, Francis J. Mootz Iii

Scholarly Works

The Rule of Law is the core of our political and legal ideology, but the Rule of Law increasingly is attacked as an unattainable goal. Postmodern theorists challenge whether it makes sense to believe that rules can be formulated for general application and then later neutrally applied by decision makers. Postmodern theorists reject the Enlightenment world view and its political corollary, classical liberalism. The author agrees with the spirit of the postmodern critique, but argues that we can understand the Rule of Law in a manner consonant with postmodern thought. Drawing on the Continental tradition of hermeneutics, or the philosophy …

Legal Realism And The Social Contract: Fuller’S Public Jurisprudence Of Form, Private Jurisprudence Of Substance, James Boyle

Faculty Scholarship

No abstract provided.

The Code Of The Moral, Niklas Luhmann

Cardozo Law Review

No abstract provided.

The Court’S Role In Interbranch Disputes Over Oversight Of Agency Rulemaking, John J. Gibbons

Cardozo Law Review

This paper is adapted from the Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 10, 1992.

New York Adverse Possession Law As A Conspiracy Of Forgetting: Van Valkenburgh V. Lutz And The Examination Of Intent, Lila Perelson

Cardozo Law Review

No abstract provided.

Natural Law Ambiguities, Robin West

Georgetown Law Faculty Publications and Other Works

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a …

A Contemporary Definition Of The International Norm Of Self-Determination, S. James Anaya

Publications

No abstract provided.

The Development Of Common Law Defamation Privileges: From Communitarian Society To Market Society, M. M. Slaughter

Cardozo Law Review

No abstract provided.

The Formal Character Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Constituents Of Democracy: The Individual In The Work Of Madame Justice Wilson, Danielle Pinard

Dalhousie Law Journal

I shall attempt to share with you the impression I have of Judge Wilson's conception of the individual. I will try to present a general view of what occurred to me as I went through the opinions she wrote while at the Supreme Court of Canada, alone or with the assent of her colleagues, dissenting or in agreement with the majority.' I shall try to put together, as honestly as possible, what she explicitly said on the subject in question.

The "Family" In The Work Of Madame Justice Wilson, Mary Jane Mossman

Dalhousie Law Journal

Susan Moller Okin's assertion about the need for justice in families offers a challenging starting point for an assessment of the family in the work of Justice Wilson. Her assertion challenges us for a number of reasons. First, in claiming that justice in the family is a prerequisite to a just society, Okin compels us to focus careful attention on our family relationships if we aspire to a just resolution of our public and political debates. For her, a satisfactory theory of justice can be developed only if it takes account of the structures and power in family relationships, and …

The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden

Dalhousie Law Journal

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that …

Foreword: History, Fable And Constitutional Interpretation, Lawrence B. Solum

Faculty Scholarship

Professor Solum provides a foreword to the symposium: One Hundred Twenty-Five Years of the Reconstruction Amendments.