Jurisprudence Commons^™

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

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No abstract provided.

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

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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 …

Law As Discourse: Bridging The Gap Between Democracy And Rights, Michel Rosenfeld

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The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton

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Jurisprudence And Personality In The Work Of John Rawls, David G. Carlson

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The article argues that John Rawls's concept of the person undergoes a significant shift between A Theory of Justice and Political Liberalism, necessitating a corresponding change in jurisprudence. In A Theory of Justice, Rawls employs a "correlative jurisprudence," where law is determinate, complete, and judges merely apply existing law. This approach is tied to a narrow, passive view of personality, treating individuals as mere loci of liberty and rights. In contrast, Political Liberalism presents a dynamic, contradictory conception of the person as a union of moral capacity and a determinate conception of the good. This shift, the article contends, requires …

Liberty And Property: Lord Bramwell And The Political Economy Of Liberal Jurisprudence Individualism, Freedom, And Utility, David Abraham

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Discussion And Decisions: A Proposal To Replace The Myth Of Self-Rule With An Attorneyship Model Of Representation, Marci A. Hamilton

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The traditional model used by legal scholars to describe our system of representative democracy seeks to justify representation as a fulfillment of the self-rule ideal Many scholars, however, have argued that certain features of the modem legislative process undermine self-rule, and have proposed means by which judicial review can correct legislative failures and restore self-rule to primacy. Drawing on German philosopher Carl Schmitt's critique of parliamentary democracy in Weimar Germany, Professor Hamilton posits that scholarly attempts to reconcile self-rule with representative democracy are misguided. Representation based on self-rule will inevitably lead to interest-group politics, resulting in meaningless and endless debate …

Nationalism And The Right To Self-Determination: The Arab-Israeli Conflict, Malvina Halberstam

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Self-determination is a slogan that has captured the imagination of people throughout the world. Numerous U.N. General Assembly resolutions have exalted self-determination, often above the fundamental rights specifically provided for in the U.N. Charter. Notwithstanding these resolutions, in practice, self-determination generally has been applied only to the dismemberment of colonial empires. Its universal application is neither possible nor desirable.

In the Arab-Israeli conflict, self-determination was never truly the issue. The conflict has been deliberately transformed into a claim for self-determination as a political tactic designed to gain the support of third world countries in the United Nations. The issues in …

Response To Bert Van Roermund, Richard H. Weisberg

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The article responds to Bert van Roermund's arguments about the relationship between law and literature, emphasizing that literature serves as a unique jurisprudential source when it mimetically imitates legal expression. The author argues that literature's value lies in its ability to capture the narrative structures of legal communication, particularly in genres like the novel or novella, which self-consciously replicate legal narrativity. This mimetic quality distinguishes literature from other forms of art and makes it uniquely relevant to legal theory.

Rethinking Rawls' Theory Of Liberty And Rights, James W. Nickel

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Democratic Credentials, Donald J. Herzog

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We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …

Justice Byron White And The Argument That The Greater Includes The Lesser, Michael E. Herz

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Three Lessons From Law And Literature, Richard H. Weisberg

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The article explores the intersection of law and literature, emphasizing the narrative nature of legal discourse and the importance of "considerate communication" in legal practice. It critiques the dominance of economic analysis in law and advocates for a more nuanced understanding of language and ethics in legal education and practice. The author uses literary works, such as Herman Melville's Billy Budd Sailor, and historical examples, like the Vichy regime in France, to illustrate the ethical and practical implications of how legal language is used.

Life As An Intrinsic Rather Than Instrumental Good: The “Spiritual” Case Against Euthanasia, J. David Bleich

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The Tension Between Rules And Discretion In Family Law: A Report And Reflection, Carl E. Schneider

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The history of law is many things. But one of them is the story of an unremitting struggle between rules and discretion. The tension between these two approaches to legal problems continues to pervade and perplex the law today. Perhaps nowhere is that tension more pronounced and more troubling than in family law. It is probably impossible to practice family law without wrestling with the imponderable choice between rules and discretion. Consider, for example, how many areas of family law are now being fought over in-just those terms. For decades we have lived with an abundantly discretionary way of resolving …

Liberal Philosophy's Troubled Relation To The Rule Of Law, David G. Carlson

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The article critiques Andrew Altman's defense of liberalism against critical legal studies (CLS), arguing that his account of the rule of law relies on unexamined presuppositions and fails to address the indeterminacy of legal meaning. Altman's metaphor of the rule of law as a checkerboard of zones of freedom is challenged for its definitional ambiguity and reliance on natural law, which undermines his critique of CLS. The analysis suggests that liberalism's inability to tolerate political intrusion into the rule of law exposes its dogmatic underpinnings, while deconstruction offers a more nuanced understanding of legal meaning and its ethical implications.

In Pursuit Of The Counter-Text: The Turn To The Jewish Legal Model In Contemporary American Legal Theory, Suzanne Last Stone

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Beginning with Professor Robert Cover's Nomos and Narrative, contemporary American legal scholars have increasingly turned, implicitly or more directly, to the Jewish legal tradition as an example of a legal system in which law is defined not by reference to the authority and power of the State, but rather by the commitment of a legal community to voluntarily-accepted legal obligations. These scholars depict the Jewish legal system as having successfully confronted - and resolved - several central dilemmas currently facing American law by maintaining a coherent legal system while accepting behavioral and interpretive pluralism. In this Article, Professor Stone shows …

James Madison And Public Choice At Gucci Gulch: A Procedural Defense Of Tax Expenditures And Tax Institutions, Edward A. Zelinsky

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Few academic doctrines can claim the intellectual and political success of tax expenditure analysis. In roughly a generation's time, Professor Surrey's procedural and substantive critique of tax subsidies has become entrenched in the law school curriculum and in legal scholarship. More impressively, the tax expenditure concept has been enshrined in federal law and become part of the daily discourse of the national budget process.

Moral Debate And Semantic Sleight Of Hand, J. David Bleich

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The Belief/Conduct Paradigm In The Supreme Court's Free Exercise Jurisprudence: A Theological Account Of The Failure To Protect Religious Conduct, Marci A. Hamilton

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The Hegelian Revival In American Legal Discourse, David G. Carlson

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Redefining Radicalism: A Historical Perspective, Walter J. Walsh

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This Essay suggests that Unger's attack on formalism and objectivism is not so new. After noting the early contributions of Thomas Hobbes and Jeremy Bentham, it does so by particular reference to the critique of William Sampson (1764-1836), the banished Irish civil rights lawyer and political activist, who led an intellectual charge upon the American common law more than a century and a half ago. It also suggests that by depicting the common law as incompatible with the egalitarian ideal of a democratic republic, Sampson sowed the seeds of a distinct radical tradition of which the critical legal studies movement …

Justice O'Connor's Intellectual Property Opinions: Currents And Crosscurrents, Marci A. Hamilton

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Collateral Estoppel As A Basis For Attorney Discipline: The Next Step, Lester Brickman, John M. Bibona

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An attorney convicted of a serious crime involving moral turpitude may be consequently disciplined for violation of DR 1-102(A)(5) of the Model Code of Professional Responsibility or Rule 8.4 of the Model Rules of Professional Conduct without the need for relitigating the issue of the attorney's criminal guilt. Likewise, when an attorney is disbarred in one jurisdiction, he can be disbarred by another jurisdiction without relitigating the underlying facts which were the basis for the initial disbarment. When courts thus discipline lawyers, they are invoking collateral estoppel to prevent the attorney from relitigating an issue raised and resolved against him …

Rawls On Political Community And Principles Of Justice, James W. Nickel

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The (Unlikely) Death Of Property, James E. Krier

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Is property dead? Thomas Grey has argued that it is.' If he is right, we have an answer to the principal question of this symposium panel, which asks whether regulation and property are allies or enemies. If Professor Grey is right, they are neitherbecause property no longer exists. If he is wrong (as I believe he partly is), then, I argue, regulation and property are allies and enemies alike, and will remain so.

Reasons, Authority, And The Meaning Of 'Obey': Further Thoughts On Raz And Obedience To Law, Donald H. Regan

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I recently published a long article' discussing a variety of topics from Joseph Raz's The Morality of Freedom.2 The article was part of a symposium on Raz's work in the Southern California Law Review. Raz responded' to the articles in that symposium, including my own. From a perspective which surveys the whole range of views on political philosophy, Raz's view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But …

Judging The Judges: Three Opinions, James Boyd White

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For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision? The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court …

Patenting The Human Genome, Rebecca S. Eisenberg

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The increasing promise of federal funding for mapping and sequencing the human genome has brought with it renewed attention in the research science community to issues of intellectual property protection for products of biotechnology research. Echoing concerns raised a decade ago in the debate over commercialization of academic biomedical research, scientists have called for the free availability of all information generated through the Human Genome Project and have argued against allowing private intellectual property rights in such knowledge. Meanwhile, private parties have quietly been obtaining patents on bits and pieces of the human genome from the Patent and Trademark Office …

A Need For Clarity: Toward A New Standard For Preliminary Injunctions, Lea B. Vaughn

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This Article examines the various standards for preliminary injunctions and demonstrates the ways in which the standards have become confused by irrelevant layers of meaning. Those layers of meaning are analyzed; nonfunctional accretions are discarded, and legitimate modem meanings are developed. The discussion is conducted against a background of assumptions about what makes a good standard, for example, accessibility and comprehensiveness. By modernizing the standard, the parties and the courts will frankly and openly discuss the underlying legal issues and values. This, in turn, should lead to more legitimate decisions.

Under a modernized standard, a court should redress immediate pretrial …