Jurisprudence Commons^™

Markets Overt, Voidable Titles, And Feckless Agents: Judges And Efficiency In The Antebellum Doctrine Of Good Faith Purchase, Harold R. Weinberg

Law Faculty Scholarly Articles

In considering American common law doctrines shaped during the nineteenth century, commentators have advanced differing theories on the primary judicial criteria employed by judges. Recent studies have argued that these doctrines reflect a criterion of economic efficiency. This work has been criticized for its failure to explain why there seems to be a correlation between efficiency and these decision rules or why judges might have preferred efficiency over other decisional criteria. Other studies have proposed that many judicial doctrines announced before the Civil War were intended to facilitate or ratify major shifts in the distribution of social wealth. This article …

"Property Rights" In Constitutional Analysis Today, James L. Oakes

Washington Law Review

The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …

"Property Rights" In Constitutional Analysis Today, James L. Oakes

Washington Law Review

The concept of "property rights" in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual "property rights" assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they …

Ideas Of Relevance To Law, Mortimer J. Adler

West Virginia Law Review

No abstract provided.

All My Friends Are Becoming Strangers: The Psychological Perspective In Legal Education, James R. Elkins

West Virginia Law Review

No abstract provided.

Interstitial Lawmaking: Uniformity Or Conformity?, Lillian Harris Lockary

Mercer Law Review

When Congress does not fully address the substantive law contemplated by a statute, federal courts have the responsibility to fashion a governing rule of decision according to their own standards-the conflict of laws rules of the forum. More precisely, the task of judicial legislation could be labeled one of interstitial lawmaking, of interpreting an indeterminate statute, rather than conflict of law. If subject matter jurisdiction is founded on a federal statute, and not diversity of citizenship, the source of law for the litigation is federal, and the rule of Erie R.R. v. Tompkins, that state law applies of its …

The Paradoxes Of Judicial Review In A Constitutional Democracy, Russell L. Caplan

Buffalo Law Review

No abstract provided.

Bankruptcy Law In Perspective, Theodore Eisenberg

Cornell Law Faculty Publications

The new bankruptcy act is a failure. Its shortcomings show that we need to change the way we think about bankruptcy law. The problem is not so much with the new bankruptcy act's treatment of any specific issue, though larger problems manifest themselves through questionable specific provisions. Rather, the problem is the way in which bankruptcy law is perceived as an area separate from the rest of the legal world. In many respects the new bankruptcy act inadequately reflects bankruptcy law's existence as part of a legal structure that includes many other federal laws, a Constitution, and detailed treatment of …

The Mathematics Of Liberalism: The Zero Sum Society By Lester C. Thurow, James T. Carney

Buffalo Law Review

No abstract provided.

The Uses Of Human Rights Norms To Inform Constitutional Interpretation, Gordon A. Christenson

Faculty Articles and Other Publications

Recent federal court of appeals decisions have relied on fundamental human rights norms to inform constitutional interpretation. This comment reviews the reasoning in those cases to identify possible constitutional uses of fundamental human rights norms and to suggest some conceptual framework for their use. The need for such a framework is illustrated by the cases themselves, which seem disparate and disjointed, with no discernible coherent philosophy, though each makes good sense when considered alone.

Judicial Review And The Problems Of Southern Africa, Michael M. Corbett Honorable

Loyola University Chicago Law Journal

No abstract provided.

Lon Fuller And Substantive Natural Law, Anthony D'Amato

Faculty Working Papers

I will contend that Fuller's secular or "procedural" natural law, as described by Moffat, does not cover the theoretical position that could be occupied by a substantive natural lawyer, that such a theoretical position is viable today, and that there are some key elements in Fuller's theory that actually conflict with substantive natural law and might therefore be criticized from that perspective.

Use Of Juror Depositions To Bar Collateral Estoppel: A Necessary Safeguard Or Dangerous Precedent?, Ina R. Bigham

Vanderbilt Law Review

This Note initially discusses the doctrine of collateral estoppel and its policy justifications. Next, it describes the mutuality requirement for the use of collateral estoppel, tracing the abandonment of the mutuality rule by an increasing number of courts and presenting the policy arguments for and against such abandonment. Then the Note turns to the three corollaries of the collateral estoppel theory and explores the different methods that parties may use to establish each one. The Note also discusses the possibility that those methods may conflict with the basic policy of preserving the privacy and inviolability of the jury system. Finally,the …

The European Economic Community -- A Profile, Utz P. Toepke

Northwestern Journal of International Law & Business

To enable those readers who may be unfamiliar with the history and structure of the European Economic Community to better understand the articles in this symposium, Dr. Toepke reviews the background, the institutions and the underlying theory of this unique legal phenomenon.

Valley Of The Mzimkulu, George N. Leighton Honorable

Loyola University Chicago Law Journal

No abstract provided.

Process And Property In Constitutional Theory, Frank I. Michelman

Cleveland State Law Review

Could property be a "process right?" "Property" does denote, among other things, a class or cluster of legal rights. In appropriate contexts, it plainly means a class or cluster of constitutional rights. But could the constitutional right of property possibly be a "process," as opposed to a "substantive," right?

The Language And Logic Of Law: A Case Study, David N. Haynes

University of Miami Law Review

Law is a social practice that consists of argument, in large part. This article is a case study of legal argument. The author has undertaken the study in the belief that the forms assumed by legal argument relate to lawyers' conscious or unconscious understanding about what is persuasive in a given legal context. One can articulate these understandings by identifying and describing particular forms of argument and by determining the circumstances in which lawyers use each form. The author examines a set of Supreme Court opinions, using as a guide one of the few contemporary attempts to organize and classify …

Interbranch Cooperation In Improving The Administration Of Justice: A Major Innovation, Mark W. Cannon, Warren I. Cikins

Washington and Lee Law Review

No abstract provided.

A Comment On The Burger Court And "Judicial Activism", Robert F. Nagel

Publications

No abstract provided.

Professor Nagel's Reflections On Cardozo, Anthony D'Amato

Cardozo Law Review

In the first issue of the Cardozo Law Review, Professor Ernest Nagel, in Reflections on "The Nature of the Judicial Process," criticized Justice Cardozo's professed abandonment of the distinction between custom and law. Professor Anthony DAmato, in Judicial Legislation, argued that Cardozo's opinions belied his assertion of the necessity for judicial legislation, and adhered generally to the theory that cases should be decided in accordance with law as it is found, rather than made, by judges.

In this commentary, Professor D'Amato argues that Professor Nagel's assertion of a distinction between law and custom is inconsistent with the development of the …

Pragmatic Instrumentalism In Twentieth Century American Legal Thought—A Synthesis And Critique Of Our Dominant General Theory About Law And Its Use, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Judging The Judges: A Case Study In Judicial Responsibility, Maximilian J.B. Welker, Jr.

Seattle University Law Review

Scholarly and professional perceptions of the role of the judiciary, and hence of the responsibility of judges, have undergone radical change since the early 1900's, and judicial opinions have both reflected and been influenced by those perceptions. At the turn of the century, conceptual abstraction and logical consistency held sway. Formalism, however, gave way to Legal Realism in the 1920's and 30's. Of the many important contributions that Realism made to the way we think about law, the most fundamental was its recognition that formal rules do not mechanically govern the resolution of legal disputes. Under this conception, the dominant …

Professor D'Amato On Law And Custom: A Rejoinder, Ernest Nagel

Cardozo Law Review

No abstract provided.

Legal Method—Deciding The Retroactive Effect Of Overruling Decisions—Lau V. Nelson, 92 Wn. 2d 823, 601 P.2d 527 (1979), Robert B. Fisko

Washington Law Review

On December 21, 1978, the Washington Supreme Court decided in Robberts v. Johnson to overrule the common law gross negligence rule applied in Lau and earlier cases, and to adopt the ordinary negligence rule, followed by a majority of states. Remanding to trial on an ordinary negligence standard, the court gave plaintiff Robberts the retroactive benefit of the new rule, but remained silent on any further retroactive effect of the decision. The principal issue in Lau's second appeal, argued after the filing of the Robberts decision, was whether and to what extent the Robberts overruling decision should be given further …

In Search Of A Role For The Legal System, Fernando E. Agrait

BYU Law Review

No abstract provided.

Dworkin's Rights Thesis: Implications For The Relationship Between The Legal Order And The Moral Order, Livingston Baker

BYU Law Review

No abstract provided.

Law, The Problems Of Poverty, And The "Myth Of Rights", Michael Diamond

BYU Law Review

No abstract provided.

Law, Society, And Moral Order: Introduction To The Symposium, Richard D. Schwartz

BYU Law Review

No abstract provided.

Punitive Damages And Double Jeopardy: A Critical Perspective Of The Taber Rule, Doyal E. Mclemore Jr.

Indiana Law Journal

No abstract provided.

The Equal Protection Clause In The Supreme Court 1873-1903, Richard S. Kay

Buffalo Law Review

No abstract provided.