Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons™

Open Access. Powered by Scholars. Published by Universities.®

2010

Discipline
Institution
Keyword
Publication
Publication Type

Articles 181 - 210 of 237

Full-Text Articles in Jurisprudence

As Time Goes By: Hermeneutics And Originalism, John T. Valauri Jan 2010

As Time Goes By: Hermeneutics And Originalism, John T. Valauri

Nevada Law Journal

What is the continuing relevance of hermeneutics to legal theory in general and to constitutional theory in particular if we are all originalists now? Both seem to be vital despite the decline of interest in hermeneutics recently. This article argues for the continuing relevance of hermeneutics to both fields because of the centrality of issues of application and practical reasoning in both. Law seeks for find the meaning of texts applied over time; legal texts are truly letters of transit. That we are all originalists, yet still have the same sort of interpretive debates we have always had, only indicates …


Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton Jan 2010

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

Articles

No abstract provided.


Fiqh And Canons: Reflections On Islamic And Christian Jurisprudence, Mark L. Movsesian Jan 2010

Fiqh And Canons: Reflections On Islamic And Christian Jurisprudence, Mark L. Movsesian

Faculty Publications

Although American scholarship has begun to address both Christian and Islamic jurisprudence in a serious way, virtually none of the literature attempts to compare the place of law in these two world religions. This Essay begins to compare Islamic and Christian conceptions of law and suggests some implications for contemporary debates about religious dispute settlement. Islam and Christianity are subtle and complex religions. Each has competing strands; each has evolved over millennia and expressed itself differently over time. Moreover, although systematic treatments of Islamic law are beginning to appear in English, much remains available only in languages, like Arabic, that …


When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions Through Integration Of Ip And Customary Law, Stephanie Spangler Jan 2010

When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions Through Integration Of Ip And Customary Law, Stephanie Spangler

Cardozo Arts & Entertainment Law Journal

No abstract provided.


Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam., Muhammad Bahrin Haji Alias Jan 2010

Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam., Muhammad Bahrin Haji Alias

Student Works (2010-2019)

The number of conversion to Islam cases in Brunei Darussalam has arisen yearly. However, due to incompetency or legal infrastructure, any issue relating to the conversion cases, could not be handled and administered efficiently. Such weakness in legal aspect has affected the court‟s reputation and sometimes conflicts especially Syariah Court to discharge their duty effectively. Therefore, the aim of this study is to identify and discuss to what extent current legal structures able resolve cases relating to conversion to Islam. To achieve this, the research is enhanced by the library research and field study in order to obtain relevant data. …


Pemakaian Maqasid Al-Shari'ah Dalam Produk Takaful Keluarga Di Etiqa Takaful Berhad., Che Ismail Che Othaman Jan 2010

Pemakaian Maqasid Al-Shari'ah Dalam Produk Takaful Keluarga Di Etiqa Takaful Berhad., Che Ismail Che Othaman

Student Works (2010-2019)

Takaful is one of the financial instruments that has its own importance. It is the fundamental to Islamic insurance and its existence is as an alternative to the present conventional insurance in the conventional world of banking and finance. Al-Takaful which is based on al-mudarabah, at-tabarru’ and al-wakalah is very supportive towards syara’ in facing the conventional insurance which contains the element of gharar, usury and gambling element. The existence of takaful has aroused various issues, among them is to what extend is the application of maqasid al-shari‘ah in all of the products offered either in Family Takaful or General …


Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez Jan 2010

Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez

St. Mary's Law Journal

In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …


Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain Jan 2010

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …


Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks Jan 2010

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …


Legal Transitions And The Problem Of Reliance, David M. Hasen Jan 2010

Legal Transitions And The Problem Of Reliance, David M. Hasen

Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …


Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks Jan 2010

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …


Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden Jan 2010

Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternatives in equal measure. Second, and relatedly, people assume that a voter’s preferred alternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter’s preferred alternative. These two assumptions guide the thinking …


Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey Jan 2010

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …


Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai Jan 2010

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Faculty Scholarship

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …


Locke's 1694 Memorandum (And More Incomplete Copyright Historiographies), Justin Hughes Jan 2010

Locke's 1694 Memorandum (And More Incomplete Copyright Historiographies), Justin Hughes

Cardozo Arts & Entertainment Law Journal

No abstract provided.


Decisional Sequencing, Peter B. Rutledge Jan 2010

Decisional Sequencing, Peter B. Rutledge

Scholarly Works

Judicial decisionmaking consists of two sets of choices – (1) how to resolve the issues in a case and (2) how to decide the order in which those issues will be resolved. Much legal scholarship focuses on the first question; too little focuses on the second. This Article aims to fill that gap. Drawing across disciplines – philosophy, economics and political science – this Article articulates a theory of “decisional sequencing.” Decisional sequencing concerns the extent to which legal rules constrain – and do not constrain – the order in which judges and other quasi-judicial actors (like arbitrators) decide matters …


Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard Jan 2010

Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard

Cardozo Journal of Equal Rights & Social Justice

Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique ("ART'), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as …


Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith Jan 2010

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …


Outsiders Inside The Beltway: Latcrit Xiv: Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime., Anthony E. Varona Jan 2010

Outsiders Inside The Beltway: Latcrit Xiv: Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime., Anthony E. Varona

American University Journal of Gender, Social Policy & the Law

No abstract provided.


The Irrepressible Myth Of Klein, Howard M. Wasserman Jan 2010

The Irrepressible Myth Of Klein, Howard M. Wasserman

Faculty Publications

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …


Prevention And Complementarity In The International Criminal Court: A Positive Approach, Katharine A. Marshall Jan 2010

Prevention And Complementarity In The International Criminal Court: A Positive Approach, Katharine A. Marshall

Human Rights Brief

No abstract provided.


The Roberts Court Vs. Free Speech, David Cole Jan 2010

The Roberts Court Vs. Free Speech, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.


Behavioral Decision Theory And Implications For The Supreme Court's Campaign Finance Jurisprudence, Molly J. Walker Wilson Jan 2010

Behavioral Decision Theory And Implications For The Supreme Court's Campaign Finance Jurisprudence, Molly J. Walker Wilson

Cardozo Law Review

America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as "speech" and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or …


The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis Jan 2010

The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis

Cardozo Law Review

No abstract provided.


The Geography Of Criminal Law, Adam Benforado Jan 2010

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …


Finding Fault With Defaults: New York Courts' Inconsistent Application Of Issue Preclusion To Default Judgments, David Noland Jan 2010

Finding Fault With Defaults: New York Courts' Inconsistent Application Of Issue Preclusion To Default Judgments, David Noland

Cardozo Law Review

No abstract provided.


Judicial Review Under A British War Powers Act, David Jenkins Jan 2010

Judicial Review Under A British War Powers Act, David Jenkins

Vanderbilt Journal of Transnational Law

This Article considers how U.K courts might exercise review under a hypothetical British "war powers act," in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a statute. The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases. It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review …


A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn Jan 2010

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …


Inter-American System, Claudia Martin Jan 2010

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.


Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin Jan 2010

Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin

Articles & Chapters

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …