Legal Theory Commons^™

The Case For The Exclusion Of Exclusion: Intellectual Property, Masculine Legal Reason, And The Ethics Of Care, Ragya Shoukry

Theses and Dissertations

This thesis argues that current legal ideals of objectivity and neutrality are historically gendered and inseparable from the development of capitalist property relations and imperial expansion. It traces origins that begin with early modern witch hunts and Francis Bacon’s empiricism, where a new “scientific rationality” emerges alongside intensified patriarchal violence. The thesis then examines John Locke’s labour-based justification of property and the figure of the rational individual, showing how this framework legitimizes enclosure, dispossession and colonial appropriation under the guise of improvement and development. Building on this foundation, the analysis turns to moral psychology and how its allegedly universal stage …

Navigating Radical Indeterminacy In The Struggle For A Global Collective Consciousness: The Question Of Eco-Justice And Law Or Universalize The Pluriverse: A Manifesto, More Or Less, Omar Auf

Theses and Dissertations

The processes of interpretation, communication, and re-interpretation leads to the emergence of an approximated collective consciousness, for which it may be struggled and contested by hegemonic. The dominant forces of this contest, capitalism and nationalism, lead to an interdivided world: one that possesses the tools to empathize with each other but is instead leading people to keep their heads down and focus on surviving their own contexts, perceived as existing within different historical times on the same timeline. This leads to legal and justice systems that fail their claim to universality and/or impartiality. Incorporating an ecological lens to justice within …

Mutual Recognitions Across Generations, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

“Sovereignty,” Arendt says, “is contradictory to” the human condition. It is not, in any event, the kind of thing that can be shared across generations. Subsequent generations lack sovereignty to the precise degree that they are bound by the decisions of their predecessors. It is no answer to say that contemporary citizens participate in the sovereignty of a whole, transgenerational people. To paraphrase de Tocqueville, later generations are not free because they are not entirely equal, and they are not equal because they are not entirely free.

Where “sovereignty” is a metaphysical concept that transcends time, recognition is an act …

Silencing And Surveillance: The Struggle Of Same-Sex Desire In The Shadow Of The 20th-Century Police State, Ethan Dunn

Honors Program: Senior Projects (Public)

This paper investigates the intersection of social perceptions of vice and gender norms in shaping the policing of sexual orientation and sexuality during the turn of the twentieth century. Employing a legal analysis rooted in the law and society movement and critical legal studies, this study examines how social anxieties surrounding vice and vice crimes prompted swift legislative measures at both federal and state levels, resulting in statutes characterized by broad language that granted extensive discretion to law enforcement officials and judges. The emergence of morals and vice police squads further intensified the targeting of individuals who deviated from prevailing …

Anglo-Saxon Res Judicata Culture For Civil Law Systems, Cesare Cavallini

Northwestern Journal of International Law & Business

One traditional aspect distinguishing the common law system from the civil law one lies in the perceived disparities in the inspiration of the law-making process. The Anglo-Saxon system typically grounds its rules in explicit and discernible policies spanning social, anthropological, and economic realms directly relevant to the circumstances. In contrast, the civil law tradition frequently necessitates a fixed conceptual framework, sometimes detached from the practical needs of society. Or, at least, this dynamic persisted until recent changes prompted by the “doing business” model, which has timidly ascended to the forefront of the State agenda, particularly across Europe, notably in Italy. …

Judicial Independence: An Important Yet Fragile Concept Needed For The Democracy Of The United States, Michael Johnson Jr

Capstone Showcase

My thesis explores the processes by which jurists are appointed to the bench to various State Supreme Courts through several selection methods. I delve deep into the extensive and intricate history surrounding judicial independence as an institutional concept, which has caused signs of concern for many legal and institutional scholars. My research aims to address the question: To what extent do the methods and mechanisms intended to safeguard judicial independence effectively fulfill their purpose? To answer this question, I use a pattern matching method to analyze a selection of six summary judgment cases–chosen randomly–from each state. Three cases where the …

Factors, Scott Rempell

Buffalo Law Review

No abstract provided.

The Apostrophic Impasse: Diacritical Remarks On The Stories Of International Law, Legal Decolonial Genealogy And Antony Anghie’S Historiography, Britt L.A.Q. (Haadiya) Hendrix

Theses and Dissertations

The (hi)stories of international law have strengthened the tentacles of coloniality in the legal regime as they continue to taunt the precarious lifeworlds of people, our planet and social imaginaries of an otherwise. The flow of coloniality has similarly rematerialized in decolonial legal theories and the postcolonial historiographical accounts of international law. I intend to demonstrate this colonial revival in the groundbreaking text of Antony Anghie Imperialism, Sovereignty and the Creation of International Law (2005) which challenged the (hi)stories of traditional jurisprudence. The latter was not necessarily a rejection nor negation of Western thought, because I argue that postcolonial historiography …

The Meaning And Malleableness Of Liberty From 1897-1945, Quentin E. Smith

The Purdue Historian

This paper covers how the substance and meaning of liberty changed during the ending years of the Gilded Age (1870-1900) through the beginning ages of the Civil Rights Movement (1954-1968). Economic liberty took shape in the cases Allegeyer v. Louisiana (1897) and Lochner v. New York (1905). Civil liberties would take several more years to come into the Supreme Court’s jurisdiction. The case Gitlow v. New York (1925) began the establishment of incorporation of the Bill of Rights to the states, otherwise known as our fundamental liberties (note: The Supreme Court used selective incorporation, however). In the case U.S. v. …

Time, The Calendar, And Centralized Power In Japan: Relying On The Research Of Yoshiro Okada, Hiroshi Saito

Japanese Society and Culture

When, why, how, and by whom was “time” combined with “law” in Japan? This paper scrutinizes the issue based on Yoshiro Okada’s research, especially his most important works: Nihon no Koyomi and his thesis “Meiji no Kaireki: ‘Toki’ no chuo shuken-ka.” It is thus possible to understand how the political authorities used the unification of the calendar system to demonstrate their power and to govern the lives of the nation. Thereafter, “time” was used as a fundamental and important standard for judgment in the science of law, legalism, and the rule of law. In this process, “calendar (time) and law” …

The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora

Journal Articles

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, …

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Touro Law Review

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

Legal Positivism As A Theory Of Law’S Existence: A Comment On Margaret Martin’S "Judging Positivism", Jorge Luis Fabra-Zamora

Journal Articles

This comment critically examines the conception of legal positivism that informs Margaret Martin’s interesting and multilayered challenge against the substance and method of this intellectual tradition. My central claim is that her characterization of the substantive theory of legal positivism sets aside a more fundamental and explanatory prior dimension concerning the positivist’s theory of the existence of legal systems and legal norms. I also argue that her understanding of the positivist’s descriptive methodology as a nonnormative project is too demanding and overlooks both the relationships between law and morality recognized by contemporary legal positivists and the pivotal distinction between internal …

Legal Pluralism And Analytical Jurisprudence: An Inapposite Contrast, Jorge Luis Fabra-Zamora

Journal Articles

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal …

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …

Rules, Standards, And Such, Kevin M. Clermont

Buffalo Law Review

This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

Prosecuting The Executive, Tiffany R. Murphy

San Diego Law Review

A special counsel is appointed to investigate and potentially prosecute any criminal activity involving those in the Executive Branch. When an attorney general makes such a decision, the individual should consider not only the scope of the appointment but whether the special counsel will protect the fundamental rules of law upon which the Constitution rests; no one person is above the law. Recent history illustrates the abuses of the special prosecutor’s role where it was used as a political weapon or for low level officials. Instead, a special counsel should be used only when the crisis is severe enough that …

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and …

Deconstructing The Wall: The Analysis And Implications Of The 2004 International Court Of Justice Advisory Opinion On The Use Of Border Walls, Noah T. Black

MAD-RUSH Undergraduate Research Conference

This research project looks at the various jurisprudences surrounding the 2004 ICJ Advisory Opinion on the Israeli Barrier and analyzes the arguments both in support and in opposition to the Court’s decision. It then looks at the conditions for the illegality of the Israeli Barrier that were established by the Court, analyzes them, and synthesizes a list of characteristics that can be applied to other barriers in order to determine their legality. This checklist, if you will, is then applied to other border walls in order to make a tentative conclusion about their legality and if a suit could be …

Causation, Legal History, And Legal Doctrine, Charles Barzun

Buffalo Law Review

No abstract provided.

On Absences As Material For Intellectual Historical Study, John Henry Schlegel

Buffalo Law Review

No abstract provided.

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

Buffalo Law Review

No abstract provided.

Writing The Social History Of Legal Doctrine, Cynthia Nicoletti

Buffalo Law Review

No abstract provided.

Hate Speech And Double Standards, Thomas M. Keck

Political Science - All Scholarship

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they …

The Liberal As An Enemy Of Queer Justice, Craig Schamel

Catalyst: A Social Justice Forum

Abstract

Liberalism as a historical mode of the political is the context in which the movement and ensuing struggle for queer justice emerged in most Western countries. The terminology, practices, tendencies, beliefs, ethics, laws, and patterns of political and social life which have been determined by this mode of the political, it is argued, are inimical to queer justice and render its achievement impossible. Liberalism as a mode of the political is approached from below, from knowledge gained in practical experience in queer groups which considered themselves revolutionary at least to some degree, and from the effects on such groups …

Asymmetric Empirical Similarity, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

The Role Of The Federal Judge In The Constitutional Structure: An Originalist Perspective, Diarmuid F. O'Scannlain

San Diego Law Review

Join me now in examining some of the structural features of our Constitution. And let’s do so by focusing upon cases that have come before my court—the United States Court of Appeals for the Ninth Circuit, the second highest federal court in the land, inferior only to the Supreme Court of the United States. My goal is to present, in modest outline, an originalist perspective on the federal judge’s role, particularly my role as a circuit judge, in the constitutional order.