Jurisprudence Commons^™

The Code Of The Moral, Niklas Luhmann

Cardozo Law Review

No abstract provided.

Clerks In The Maze, Pierre Schlag

Publications

No abstract provided.

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.

The Breadth Of Context And The Depth Of Myth: Completing The Feminist Paradigm, Emily Calhoun

Publications

No abstract provided.

Silence And The Word, Paul Campos

Publications

No abstract provided.

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.

What Is Therapeutic Jurisprudence?, Michael L. Perlin

Articles & Chapters

No abstract provided.

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

Articles

No abstract provided.

Developing A Tribal Common Law Jurisprudence: The Navajo Experience 1969-1992, Daniel L. Lowery

American Indian Law Review

No abstract provided.

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

Articles

No abstract provided.

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

Articles

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.

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

Scholarly Works

In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

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

Cardozo Law Review

No abstract provided.

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …

Priorities In Accounts: The Crazy Quilt Of Current Law And A Proposal For Reform, Dan T. Coenen

Vanderbilt Law Review

Moe Promisee has a right under a contract to receive monetary payments from Mae Promisor. Moe assigns his right first to Faye and then to Clay. Whom must Mae pay, Faye or Clay?

For more than a century, judges have struggled with successive assignments to different persons of the same contract right. These cases, which typically involve rights to monetary payments called "accounts," have generated subtleties of doctrine and disagreements among courts. Today, as a general rule, the Uniform Commercial Code controls these cases.' Ambiguities, however, lurk in the Code. Cryptic common-law doctrines also continue to govern many successive-assignment problems. …

Subject: Object, Jeanne L. Schroeder

University of Miami Law Review

No abstract provided.

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 …

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 Formal Character Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Argument For Judicial Review—And For The Originalist Approach To Judicial Review (The Ben J. Altheimer Lecture), Michael J. Perry

University of Arkansas at Little Rock Law Review

No abstract provided.

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Michigan Law Review

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

Courts And Cultural Distinctiveness, Marie R. Deveney

University of Michigan Journal of Law Reform

The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker's understanding of what constitutes "cultural distinctiveness" is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh's and Joseph Carens's papers and Dean Suagee's remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists' subtle and sophisticated understandings of cultural distinctiveness with the …

Justice Barkett's Feminist Jurisprudence, Lanae Holbrook

University of Miami Law Review

No abstract provided.

The Jurisprudential Cab Ride: A Socratic Dialogue, Daniel A. Farber

BYU Law Review

No abstract provided.

Judicial Federalism: Current Trends And Long-Term Prospects, Stanley H. Friedelbaum

Florida State University Law Review

No abstract provided.

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

The Canons Of Statutory Construction And Judicial Constraints: A Response To Macey And Miller, Lawrence C. Marshall

Vanderbilt Law Review

Professors Jonathan Macey and Geoffrey Miller claim to have set out to provide a positivist explanation for why judges ever invoke canons in the course of interpreting statutes.' In truth, though, their question is a far broader one. What they really seek to explain is why judges ever use any interpretive tools in the course of interpreting statutes. Why, Macey and Miller want to know, don't judges simply decide what result in the case will best promote a good outcome on the grounds of public policy, intrinsic fairness, economic efficiency or wealth maximization? This question is perplexing to Macey and …