Jurisprudence Commons^™

Judicial Review And International Law, Michel Troper

San Diego International Law Journal

According to common doctrine, the courts, once established, apply the constitution, the principles expressed in the constitution, and also some principles not always expressed but that are thought to be inherent to any legal system, as for example the principle that the State is sovereign. Like the hierarchy of norms, these principles precede the institution of the courts and their jurisprudence, so that they can be used to evaluate them. True, the principles can be vague, but it is considered one of the tasks of constitutional theory to determine their substance before analyzing case law in their light.

Court Review: Volume 40, Issue 1 - Recent Civil Decisions Of The United States Supreme Court: The 2002-2003 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

The past term of the United States Supreme Court was dramatic, unexpected, and produced constitutional decisions that affect the nature and fabric of our society. The term had three or four “star” cases: the approval of affirmative action, the striking down of bans on gay sexual relations, the U-turn in the Court’s federalism revolution, and the restriction on punitive damage awards. These decisions and the other rulings in constitutional law outside the criminal field made up the bulk of the Court’s opinions for the 2002-2003 term.

Justice Scalia's Tax Jurisprudence, Stephen T. Black, Katherine D. Black

Law Faculty Scholarship

Justice Scalia is an outspoken conservative acclaimed for his remarkable intellect and scholarship, and is noted for his adherence to the principle of judicial restraint. He pursues what he insists is an "originalist" path that relies on the Constitution's actual text in decision-making. He works hard to try to maintain constitutional interpretation that does not change from case to case.

So what happens when an "originalist"--concerned that Congress writes imprecise legislation and then leaves its interpretation and application in the hands of administrative agencies or, worse yet, the courts-is forced to deal with tax issues? This article takes a look …

A Matter Of Constitutional Luck: The General Applicability Requirement In Free Exercise Jurisprudence, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

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, …

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

Reason And Authority In Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

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.

Fundamentalism From The Perspective Of Liberal Tolerance, Leslie C. Griffin

Cardozo Law Review

No abstract provided.

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 …

Renvoi In Multinational Cases In New York Courts: Does Its Past Preclude Its Future?, Matthew Chait

Cardozo Journal of International and Comparative Law

The doctrine of renvoi, which requires courts to consider both the internal laws and conflict of laws rules of a foreign jurisdiction, has been a contentious issue in New York courts. While cases like In re Tallmadge rejected renvoi due to concerns of creating an endless cycle, In re Schneider embraced it, emphasizing the need to apply the whole law of the foreign jurisdiction. Modern approaches aim to integrate renvoi into interest analysis, focusing on practical applications to ascertain foreign interests accurately and promote reciprocity, while addressing concerns about sovereignty and forum shopping.

Introduction To The Conference On Fundamentalisms, Equalities, And The Challenge To Tolerance In A Post-9/11 Environment, Richard H. Weisberg

Cardozo Law Review

No abstract provided.

Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

Pomo At War, Edward Rothstein

Cardozo Law Review

No abstract provided.

Pragmatist And Non-Pragmatist Knowledge Practices In American Law, Mariana Valverde

Pragmatism, Law and Governmentality

For anyone interested in documenting and analyzing knowledge practices, legal arenas prove to be fruitful sites, for at least two reasons. 1) First, questions of evidence and of authority are often explicitly contested, with the contestations often forming part of a court’s public record and/or going on in the public setting of the courtroom. Thus, unlike science studies scholars, who must gain access to social interactions that are not mentioned in scientific papers and that do not take place in public view, legal studies scholars have vast amounts of material – affidavits, trial transcripts, etc– that can readily be analyzed, …

Styles Of Pragmatism, Social Science And The Law, Robert P. Burns

Pragmatism, Law and Governmentality

I have long held as an ideal the words of one of foremost American interpreters of John Dewey's philosophy: "An adequate, comprehensive political and social theory must be at once empirical, interpretive, and critical." How these styles of social inquiry, whose practitioners often seem at war, might cohere has never been completely clear. This essay is an attempt to work out in a very limited context some of the issues surrounding these relationships. In particular, I want to explore the relationship between the interpretive style, which I take to be central, and the other two. The focus of these remarks …

Introduction: Water Law, Jay F. Stein

United States - Mexico Law Journal (1993-2005)

Also includes map of border of Mexico with the states of New Mexico and Texas

Panel Discussion: Claims Of The United States And Mexico Under The Treaty Of 1944 And The Municipal Acquisition Of Fresh Water Supplies In The Border Region, Jay F. Stein, Carlos Marin, Jill Warren, Alberto Szekely, Marilyn C. O'Leary, Maria Elena Giner

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Utah At The Crossroads: The Role Of The Judiciary In Initiative And Severability Law After Gallivan V. Walker, Jaysen Oldroyd

Brigham Young University Journal of Public Law

No abstract provided.

Legal Issues In The Regulation Of Water Supply In Mexico, Carlos Ramos Miranda

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Bi-National Border Water Supply Issues From The Perspective Of The Ibwc, Carlos Marin

United States - Mexico Law Journal (1993-2005)

No abstract provided.

The Transfer Of Agricultural Water To Municipal And Industrial Use In Southern New Mexico, Len Stokes

United States - Mexico Law Journal (1993-2005)

No abstract provided.

The Future Of The Colorado River Delta, Malissa Hathaway Mckeith

United States - Mexico Law Journal (1993-2005)

Includes map of the Colorado River Delta

Procedures For Investigating And Prosecuting White Collar Crime, Leo M. Romero

United States - Mexico Law Journal (1993-2005)

No abstract provided.

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 …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

Cardozo Law Review

No abstract provided.

Mexico's Federal Organized Crime Act, Rodrigo Labardini

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Toward A North American Economic Space, Miguel Jauregui Rojas

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Bringing White-Collar Criminals To Justice - Fugitive Apprehension And Return And Obtaining Evidence Abroad, David P. Warner

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Front Matter, United States-Mexico Law Journal

United States - Mexico Law Journal (1993-2005)

No abstract provided.