Can Legislatures Constrain Judicial Interpretation Of Statutes?,
2010
Northwestern University School of Law
Can Legislatures Constrain Judicial Interpretation Of Statutes?, Anthony D'Amato
Faculty Working Papers
An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this …
Pragmatic Indeterminacy,
2010
Northwestern University School of Law
Pragmatic Indeterminacy, Anthony D'Amato
Faculty Working Papers
If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.
Legal Realism Explains Nothing,
2010
Northwestern University School of Law
Legal Realism Explains Nothing, Anthony D'Amato
Faculty Working Papers
I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.
The Speluncean Explorers--Further Proceedings,
2010
Northwestern University School of Law
The Speluncean Explorers--Further Proceedings, Anthony D'Amato
Faculty Working Papers
Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law,
2010
Northwestern University School of Law
Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato
Faculty Working Papers
Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."
The "Bad Samaritan" Paradigm,
2010
Northwestern University School of Law
The "Bad Samaritan" Paradigm, Anthony D'Amato
Faculty Working Papers
This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …
Elmer's Rule: A Jurisprudential Dialogue,
2010
Northwestern University School of Law
Elmer's Rule: A Jurisprudential Dialogue, Anthony D'Amato
Faculty Working Papers
Cardozo wrote of Riggs v. Palmer that this case that two analytical paths pointed in different directions and the judges selected the path that seemed better to lead to "justice". Dworkin has claimed that the case demonstrates the triumph of certain "principles" over what are called "rules of law". Taylor has argued that there was no "law" at all about murderers inheriting from testators before the actual decision in Riggs, and that consequently the decision itself was the only "law" that affected Elmer. All of these suggest that the decision in Riggs was largely unpredictable and therefore must have come …
Judicial Legislation,
2010
Northwestern University School of Law
Judicial Legislation, Anthony D'Amato
Faculty Working Papers
My argument will be that it is unjust in the broadest view of our legal system for judges to legislate, even if they confine their legislation to the narrowest limits in the closest of cases. To the extent that my argument is successful in diminishing the judicial legislation position, it would tend to serve to corroborate Dworkin's rights thesis.
Is Equality A Totally Empty Idea?,
2010
Northwestern University School of Law
Is Equality A Totally Empty Idea?, Anthony D'Amato
Faculty Working Papers
Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …
Los Grandes Rechazos De La Sentencia Roe V. Wade,
2010
Valparaiso University
Los Grandes Rechazos De La Sentencia Roe V. Wade, Richard Stith
Law Faculty Publications
: Quizás mayormente a causa del poder económico de los Estados Unidos, su alta jurisprudencia constitucional suele tener mucha influencia en otros países. En particular, la sentencia de la Corte Suprema norteamericana Roe v. Wade, que declaró un derecho al aborto durante todo el embarazo, puede conducir a la legalización del aborto a petición por los grandes tribunales de otras naciones. Pero antes de intentar de andar este surco abierto por la Corte estadounidense, los otros tribunales desearán saber que la sentencia ha sido rotundamente rechazada por fuentes bastante sorprendentes. El razonamiento de Roe ha sido rechazado por los peritos …
Book Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism By Alex M Cameron,
2010
Dalhousie University Schulich School of Law
Book Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism By Alex M Cameron, Dianne Pothier
Dianne Pothier Collection
Alex Cameron’s book, Power Without Law, is a scathing critique of the Supreme Court of Canada’s 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.’s Mi’kmaq treaty claim. Cameron’s book has attracted a lot of attention because of the author’s position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshall case itself. As a fisheries prosecution, Marshall was a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, 3 and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent …
Clinton, Ginsburg, And Centrist Federalism,
2010
Washington and Lee University School of Law
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Scholarly Articles
Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement …
The Contradiction: Animal Abuse - Alive And Well, 44 J. Marshall L. Rev. 209 (2010),
2010
UIC School of Law
The Contradiction: Animal Abuse - Alive And Well, 44 J. Marshall L. Rev. 209 (2010), Katie Galanes
UIC Law Review
No abstract provided.
Philip Hamburger's Law And Judicial Duty: The Origins Of Judicial Review,
2010
University at Buffalo School of Law
Philip Hamburger's Law And Judicial Duty: The Origins Of Judicial Review, Robert J. Steinfeld
Book Reviews
No abstract provided.
Political Genocide In Latin America: The Need For Reconsidering The Current Internationally Accepted Definition Of Genocide In Light Of Spanish And Latin American Jurisprudence ,
2010
American University Washington College of Law
Political Genocide In Latin America: The Need For Reconsidering The Current Internationally Accepted Definition Of Genocide In Light Of Spanish And Latin American Jurisprudence , Howard Shneider
American University International Law Review
No abstract provided.
Legal Paradigms: How Jurisprudence Affects Insider/Outsider Status Quo, Outsider Jurisprudence, And Transformative Directions.,
2010
American University Washington College of Law
Legal Paradigms: How Jurisprudence Affects Insider/Outsider Status Quo, Outsider Jurisprudence, And Transformative Directions., Guadalupe T. Luna
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Rainwater Recapture: Development Regulations Promoting Water Conservation, 43 J. Marshall L. Rev. 359 (2010),
2010
UIC School of Law
Rainwater Recapture: Development Regulations Promoting Water Conservation, 43 J. Marshall L. Rev. 359 (2010), Julian Conrad Juergensmeyer
UIC Law Review
No abstract provided.
Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010),
2010
UIC School of Law
Law As Hidden Architecture: Law, Politics, And Implementation Of The Burnham Plan Of Chicago Since 1909, 43 J. Marshall L. Rev. 375 (2010), Richard J. Roddewig
UIC Law Review
No abstract provided.
Doninger's Wedge: Has Avery Doninger Bridged The Way For Internet Versions Of Matthew Fraser?, 43 J. Marshall L. Rev. 439 (2010),
2010
UIC School of Law
Doninger's Wedge: Has Avery Doninger Bridged The Way For Internet Versions Of Matthew Fraser?, 43 J. Marshall L. Rev. 439 (2010), Adam Dauksas
UIC Law Review
No abstract provided.
The Communications Decency Act And New York Times V. Sullivan: Providing Public Figure Defamation A Home On The Internet, 43 J. Marshall L. Rev. 491 (2010),
2010
UIC School of Law
The Communications Decency Act And New York Times V. Sullivan: Providing Public Figure Defamation A Home On The Internet, 43 J. Marshall L. Rev. 491 (2010), Chris Williams
UIC Law Review
No abstract provided.
