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Articles 151 - 180 of 272
Full-Text Articles in Jurisprudence
Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack
Epistemology Legalized: Or, Truth, Justice, And The American Way, Susan Haack
Articles
No abstract provided.
On Aristotelian Criminal Law: A Reply To Duff, Kyron J. Huigens
On Aristotelian Criminal Law: A Reply To Duff, Kyron J. Huigens
Articles
No abstract provided.
The Immense Rumor, Peter Goodrich
The Immense Rumor, Peter Goodrich
Articles
The article explores the intersection of friendship and law, particularly through the lens of Jacques Derrida's theory, which posits that the concept of friendship is inherently paradoxical and shaped by legal and theological frameworks. Derrida argues that the "immense rumor" of friendship reflects a historical inability to articulate amity publicly, leading to a repression of friendship in the public sphere. This repression is rooted in the humanist tradition, which draws from Graeco-Roman and Judeo-Christian influences, emphasizing the primacy of political or communal bonds over individual friendships. The analysis reveals that legal discourses have imposed prohibitions on the role of friendship, …
Lo Stato Di Diritto E La Legittimità Della Democrazia Costituzionale, Michel Rosenfeld
Lo Stato Di Diritto E La Legittimità Della Democrazia Costituzionale, Michel Rosenfeld
Articles
No abstract provided.
Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes
Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes
Articles
No abstract provided.
Dignity And Desert In Punishment Theory, Kyron J. Huigens
Dignity And Desert In Punishment Theory, Kyron J. Huigens
Articles
No abstract provided.
Retrenchment On Entrenchment, Stewart E. Sterk
Retrenchment On Entrenchment, Stewart E. Sterk
Articles
The article critiques the argument by Posner and Vermeule that legislative entrenchment—where a legislature passes laws that future legislatures cannot repeal without special procedures—is constitutionally permissible and normatively attractive. The author, Stewart E. Sterk, contends that their argument is flawed because it fails to address whether courts should enforce such entrenched laws, rendering their case legally and normatively incoherent. Sterk argues that entrenchment undermines democratic principles by allowing one legislature to bind future legislatures, potentially leading to intergenerational inequity and abuse by special interest groups. He advocates for mechanisms allowing future legislatures to adjust laws as needed, ensuring flexibility and …
Law's Non-Existent Empire, Jeanne L. Schroeder, David G. Carlson
Law's Non-Existent Empire, Jeanne L. Schroeder, David G. Carlson
Articles
The article critiques Pierre Schlag's normative legal thought, arguing that while his descriptive critique of law as a fiction is accurate, his normative proposal to abolish law is contradictory and flawed. By incorporating Lacanian psychoanalysis, the authors contend that law, as part of the symbolic order, is constitutive of subjectivity and cannot be abolished. They propose that legal scholarship should instead focus on exposing law's role in shaping subjectivity rather than seeking to eliminate it. The analysis emphasizes that law, like language, is an intersubjective system sustained by collective belief, despite lacking a concrete foundation.
Pierre The Anomalist: An Epistemology Of The Legal Closet, Peter Goodrich
Pierre The Anomalist: An Epistemology Of The Legal Closet, Peter Goodrich
Articles
The article examines Pierre Schlag's radical critique of legal reason and the legal academy, which challenges the profession's reliance on abstract norms and universal truths. Schlag's work, often met with hostility, exposes the material and emotional underpinnings of legal discourse, particularly the fear of losing control and status tied to the academy's faith in reason. His critique is situated within broader philosophical traditions that question the limits of reason and the importance of creativity in legal thought. The article also explores how Schlag's ideas intersect with other scholars' work, such as Reginald Leamon Robinson's analysis of legal narrative and identity, …
The Internet And The Persistence Of Law, Justin Hughes
The Internet And The Persistence Of Law, Justin Hughes
Articles
Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the "no-law Internet," the "Internet as a separate jurisdiction," and Internet law as "translation" of familiar legal concepts. This Article reviews these stories, focusing on how ongoing "translation" is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both …
To Do Is To Be, Zanita E. Fenton
How To Be A Moorean, Donald H. Regan
How To Be A Moorean, Donald H. Regan
Articles
G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.1
[email protected]: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin
[email protected]: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin
Articles
No abstract provided.
The Physician As A Conscientious Objector, J. David Bleich
The Physician As A Conscientious Objector, J. David Bleich
Articles
No abstract provided.
Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton
Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton
Articles
No abstract provided.
Homicide In Aretaic Terms, Kyron J. Huigens
Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport
Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport
Articles
No abstract provided.
Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis
Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis
Articles
This Article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas-federalism, freedom of association, the religion clauses, and the balance of power between juries and judges-the Court is helping sustain a civil order that bubbles up from state governments or from citizens voluntarily gathered together or randomly selected. The Article is the first to …
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 …
Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend
Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend
Articles
This Article considers interdisciplinarity and the legal curriculum in the context of probability and statistics. Section D of Part II begins the discussion by sketching some multidisciplinary, pluridisciplinary, interdisciplinary, and transdisciplinary approaches. Part III is the workhorse of this Article. The particular example used here is the well-known jury discrimination case of Castaneda v. Partida as described in Section A. This "case study" provides the basis for a crossdisciplinary experience that offers students an opportunity to think about law as a discipline. It is difficult for students to step back and look at law as a discipline when there is …
The Value Of Rational Nature, Donald H. Regan
The Value Of Rational Nature, Donald H. Regan
Articles
Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value.1 A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory.2 But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value …
Europe In America: Grammatology, Legal Studies, And The Politics Of Transmission, Peter Goodrich
Europe In America: Grammatology, Legal Studies, And The Politics Of Transmission, Peter Goodrich
Articles
This Essay begins by analyzing the way American legal theory has failed to adequately address the challenges and insights of grammatology, the philological critique of the language of law initiated with Jacques Derrida's work Of Grammatology. Professor Goodrich traces the form that this failed confrontation took and then outlines how this philological critique ought to inform a study of law. Importantly for Professor Goodrich, the grammatological approach to law provides ways of analyzing not just the written legal text, but also the effects of new media technologies on the law more broadly. The changes in the law brought about by …
Nine Shibboleths Of The New Federalism, Marci A. Hamilton
Nine Shibboleths Of The New Federalism, Marci A. Hamilton
Articles
No abstract provided.
A Measure Of Freedom, James W. Nickel
Law, Economics, And The Skeleton Of Value Fallacy, Kyron Huigens
Law, Economics, And The Skeleton Of Value Fallacy, Kyron Huigens
Articles
Experiments in the last decade or so have demonstrated persistent failures on the part of ordinary individuals rationally to pursue self-interest. The experiments pose serious challenges to economics, rational choice theory, and the law and economics school. Some experiments, for example, suggest an "endowment effect", that contradicts the Coase Theorem; the notion that, in the absence of transaction costs, goods will find their most efficient distribution regardless of their initial assignment. Cass Sunstein has collected a set of essays by economists and legal scholars exploring these challenges, in a volume entitled Behavioral Law and Economics.
Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt
Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt
Articles
No abstract provided.
Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes
Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes
Articles
No abstract provided.
The Muddy Boundaries Between Res Judicata And Full Faith And Credit, Stewart E. Sterk
The Muddy Boundaries Between Res Judicata And Full Faith And Credit, Stewart E. Sterk
Articles
The Full Faith and Credit Clause of the U.S. Constitution requires states to respect and recognize the legal decisions of other states, but its application is limited when it comes to judgments that attempt to control future behavior or infringe on a state's sovereignty. The article argues that while the clause ensures finality and uniformity, it does not obligate states to enforce sister-state injunctions or orders that dictate conduct beyond their borders. This distinction is particularly evident in cases involving family law, where states retain flexibility to modify or ignore prior judgments based on evolving circumstances, such as the best …
Rhetoric And Somatics: Training The Body To Do The Work Of Law, Peter Goodrich
Rhetoric And Somatics: Training The Body To Do The Work Of Law, Peter Goodrich
Articles
The article explores the intersection of law, rhetoric, and corporeality, arguing that law is deeply embedded in the human body and its emotional and sensory experiences. It posits that legal dogmatics, while often seen as abstract, is shaped by the body's characteristics and movements, which serve as a substrate for legal logic. The analysis centers on Abraham Fraunce and his contemporaries, who critique the strict legality by emphasizing rhetoric, decorum, and the form of life that rhetoric implies. This critique challenges the notion of law as a detached, abstract system by highlighting its corporeal and emotional dimensions.
The Dead End Of Deterrence, And Beyond, Kyron J. Huigens
The Dead End Of Deterrence, And Beyond, Kyron J. Huigens
Articles
No abstract provided.