Jurisprudence Commons^™

The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow

Faculty Scholarship

No abstract provided.

Law In A Reign Of Terror, Alan Watson

Scholarly Works

A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in …

Institutionalized Conflicts Between Law And Policy, Joseph P. Tomain

Faculty Articles and Other Publications

Law and policy do not mix well. The legal system is a significant force which contributes to the splintering of substantive policies. While this argument is made with specific reference to energy law and policy, it also has a general application to other classes of complex cases.

The "signs" that law and policy do not interact neatly manifest themselves in the form of conflicts of two different categories. In the first category are conflicts between the ends and purposes of law and policy. These are addressed in Section 11 of this article. In the second category are conflicts within the …

Uncertainty In Law And Its Negation: Reflections, Gordon A. Christenson

Faculty Articles and Other Publications

For this issue of the Review, the editors invited me to reflection. In response, I wish to consider some aspects of a problem that has bothered me over the past quarter-century. This problem arises from radical subjectivism and its effect on the legal order. I believe that something is radically subjective in law when one norm is considered as valid as any other, or when one perception of facts is thought as valid as any other, for the reason that any objective principles for determining validity are either inadequate or considered meaningless tautologies, masking the subjective preference of those with …

Whither Jurisprudence?, Anthony D'Amato

Faculty Working Papers

After considering the side road of critical legal studies, I shall try to indicate the major signposts to a more complete jurisprudence. These signposts take the form of questions or anomalies in our present understanding of law. I will conclude that only by following these signposts, by exploring these questions and anomalies, will we begin to uncover the nature of law and justice.

Practical Reasoning And Judicial Justification: Toward An Adequate Theory, Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

The Constitution And Informational Privacy, Or How So-Called Conservatives Countenance Governmental Intrustion Into A Person's Private Affairs, 18 J. Marshall L. Rev. 871 (1985), Michael P. Seng

UIC Law Review

No abstract provided.

The Evolving Doctrine Of Implication: The Export Administration Act And Private Rights Of Action, Lauren B. Bonfield

Northwestern Journal of International Law & Business

Two recent United States District Court opinions examine the question of when a federal court may invoke the "implication" doctrine which permits them "to create a private right of action from a federal statute that does not expressly provide for [a] private remed[y]. . . ." Both of the cases raise the issue of implication as it applies to the antiboycott provision of the Export Administration Act (EAA). Plaintiffs in both Bulk Oil (Zug) A.G. v. Sun Co., and Abrams v. Baylor College of Medicine, claimed an implied private right to bring an action for damages and in addition, alleged …

Paul, The Lawyer, On Law, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

An Alternative Analysis Of Law Of The Case - Rethinking Loveday V. State

Maryland Law Review

No abstract provided.

Legal Theory And The Pivotal Role Of The Concept Of Coercion, Dale A. Nance

Faculty Publications

This paper addresses an important problem in modem legal philosophy: the problem of identifying the proper role of the concept of coercion in a general theory of the nature of law. The present state of philosophical art on this topic is the legacy of difficulties arising from a naive positivism - generally thought to have over-emphasized the role of coercive power. The resulting reaction in modem jurisprudence against the focus upon coercion reflects a failure to come to grips fully with the underlying methodological issues of descriptive legal theory.

Modern American Jurisprudence And The Problem Of Power, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

Not-So-Critical Legal Studies, Stephen Diamond

Cardozo Law Review

No abstract provided.

Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton Jr.

Cardozo Law Review

No abstract provided.

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

Law Faculty Articles and Essays

In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …

Holmes On Peerless: Raffles V. Wichelhaus And The Objective Theory Of Contract, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

The History Of Statutory Interpretation: A Study In Form And Substance, William S. Blatt

Articles

No abstract provided.

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

Whither Jurisprudence?, Anthony D'Amato

Cardozo Law Review

No abstract provided.

Yellow Pages Legal Ads In Texas: The Complexities Of Dr 2-101(B) & (And) (C)., Vincent Robert Johnson

St. Mary's Law Journal

This Article explains how attorneys can avoid private reprimands for advertisements in the Yellow Pages pursuant to subsection (B) and (C) of the Texas Code of Professional Responsibility Disciplinary Rule 2-101, given there is no scholarship or precedent. Subsection (B) requires an advertisement to include the name of a lawyer who is licensed to practice law in Texas, who will be responsible for performing the legal service, and the areas of law in which they practice. Subsection (C) requires detailed statements be included concerning whether the individuals named in compliance with subsection (B) are certified with the Texas Board of …

Reexamining Roe: Nineteenth-Century Abortion Statutes And The Fourteenth Amendment., James S. Witherspoon

St. Mary's Law Journal

Abstract Forthcoming.

Ethical, Statutory, And Regulatory Conflicts Of Interest In Real Estate Transactions., Jeb C. Sanford

St. Mary's Law Journal

Abstract Forthcoming.

Surface Damages In Texas: A Proposal For Legislative Intervention., Steven John Berry

St. Mary's Law Journal

Abstract Forthcoming.

A New Twist For Texas Lemon Owners., Ayala Alexopoulos

St. Mary's Law Journal

Twenty-five percent of the consumers with car warranty problems are dissatisfied with the complaint-handling process in the automobile industry and the result of their grievances. In response to the frustrations of defective car owners, Texas, along with many other states, passed a “lemon law” providing more definitive relief for consumer. Lemon laws provide a clearly defined cause of action against the manufacturer and provide the consumer with a low-cost, readily available mechanism for resolving their disputes. Most states’ lemon laws require the consumer to resort to arbitration provisions before initiating a court action if a manufacturer sets up a dispute …

Determining Mineral Ownership In Texas After Moser V. United States Steel Corp. - The Surface Destruction Nightmare Continues., David A. Scott

St. Mary's Law Journal

Total abandonment of the surface destruction test is essential for achieving mineral title certainty in Texas. Many instruments which grant or reserve mineral rights in Texas contain the words “other minerals.” When the instrument does not specifically list which substances the contracting parties include as minerals, a dispute often arises as to ownership of the unspecified substances. To resolve ownership disputes, Texas courts adopted the surface destruction test. This test focuses on the destructive effects removal of a particular substance would have on the surface of the land. Unfortunately, the surface destruction test yielded unpredictable results, causing uncertainty in mineral …

Contempt Of Court - Right To Jury Trial - A Fine Of $104,000 And Thirty Day Jail Sentence Is Serious Offense Entitling Contemnor To Trial By Jury., Kathryn E. Eriksen

St. Mary's Law Journal

Abstract Forthcoming.

"Of Law And The River," And Of Nihilism And Academic Freedom, Peter W. Martin

Cornell Law Faculty Publications

Correspondence provoked by the publication of Dean Paul D. Carrington's article, "Of Law and the River," 34 J. Legal Educ. 222 (1984).

On Preferences And Promises: A Response To Harsanyi, Donald H. Regan

Articles

John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi's positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could …

Book Review, Pierre Schlag

Publications

No abstract provided.

Why We Need Legal Philosophy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Do we need legal philosophy? Legal philosophy or jurisprudence, like many other areas of philosophy, is of intrinsic interest to many people. But this does not tell us whether or why we need it. The answer suggested by Lon Fuller is that legal philosophy has - or should have - implications for lawyers, judges, legislators and law professors. And yet in 1952 Fuller concluded that: "Judged by this standard I don't think we can claim that the last quarter of a century has been a fruitful one for legal philosophy in this country - certainly not in terms of immediate …