Moral Foundation Theory And The Law,
2010
Seattle University School of Law
Moral Foundation Theory And The Law, Colin Prince
Seattle University Law Review
Moral foundation theory argues that there are five basic moral foundations: (1) harm/care, (2) fairness/reciprocity, (3) ingroup/loyalty, (4) authority/respect, and (5) purity/sanctity. These five foundations comprise the building blocks of morality, regardless of the culture. In other words, while every society constructs its own morality, it is the varying weights that each society allots to these five universal foundations that create the variety. Haidt likens moral foundation theory to an “audio equalizer,” with each culture adjusting the sliders differently. The researchers, however, were not content to simply categorize moral foundations—they have tied the foundations to political leanings. And it is …
Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison,
2010
Cleveland State University
Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison, Patrick J. Charles
Cleveland State Law Review
However, to give Marshall full credit for the “choice of means” doctrine is unfair, he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. Indeed, the philosophical and legal influences of John Marshall have been the speculation of scholarly discourse for some time. For instance, many legal commentators and historians have attributed the influence of Marshall's opinions to being a strong Federalist because many of his opinions echo the Federalist interpretation of the Constitution. However, Marshall's opinions were also influenced by factors that sometimes conflicted with Federalist thought. This Article does not …
Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric,
2010
University of Arkansas at Little Rock William H. Bowen School of Law
Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric, Theresa M. Beiner
Law Faculty Scholarship
The United States Supreme Court’s discourse on discrimination affects how fundamental civil rights - such as the right to be free from gender and race discrimination - are adjudicated and conceptualized in this country. Shortly after Congress passed Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer conduct. While the Court was more reluctant to presume such discrimination by governmental actors, it was deferent to Congress’s ability to set standards that would presume discrimination. Over time, however, that presumption and the Court’s deference to Congress has …
Inter-American System,
2010
American University Washington College of Law
Inter-American System, Claudia Martin
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Judicial Review Under A British War Powers Act,
2010
Vanderbilt University Law School
Judicial Review Under A British War Powers Act, David Jenkins
Vanderbilt Journal of Transnational Law
This Article considers how U.K courts might exercise review under a hypothetical British "war powers act," in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a statute. The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases. It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review …
Perelman's Theory Of Argumentation And Natural Law,
2010
Pacific McGeorge School of Law
Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii
McGeorge School of Law Scholarly Articles
No abstract provided.
Constitutional Borrowing,
2010
Boston University School of Law
Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai
Faculty Scholarship
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …
The Humanity Of Law,
2010
Duke Law School
The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal,
2010
Vanderbilt University Law School
The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller
Vanderbilt Law Review
This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …
Science, Public Bioethics, And The Problem Of Integration,
2010
Notre Dame Law School
Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead
Journal Articles
Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.
This Article examines the question of how scientific methods and …
Stare Decisis As Judicial Doctrine,
2010
Notre Dame Law School
Stare Decisis As Judicial Doctrine, Randy J. Kozel
Journal Articles
Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.
This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …
Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements,
2010
Southwestern Law School
Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard
Cardozo Journal of Equal Rights & Social Justice
Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique ("ART'), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as …
Locke's 1694 Memorandum (And More Incomplete Copyright Historiographies),
2010
Yeshiva University, Cardozo School of Law
Locke's 1694 Memorandum (And More Incomplete Copyright Historiographies), Justin Hughes
Cardozo Arts & Entertainment Law Journal
No abstract provided.
A Foothold For Real Democracy In Eastern Europe,
2010
Vanderbilt University Law School
A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn
Vanderbilt Journal of Transnational Law
Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …
When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions Through Integration Of Ip And Customary Law,
2010
Benjamin N. Cardozo School of Law
When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions Through Integration Of Ip And Customary Law, Stephanie Spangler
Cardozo Arts & Entertainment Law Journal
No abstract provided.
The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law,
2010
University of Colorado Law School
The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff
Publications
To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …
Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam.,
2010
Universiti Malaya
Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam., Muhammad Bahrin Haji Alias
Student Works (2010-2019)
The number of conversion to Islam cases in Brunei Darussalam has arisen yearly. However, due to incompetency or legal infrastructure, any issue relating to the conversion cases, could not be handled and administered efficiently. Such weakness in legal aspect has affected the court‟s reputation and sometimes conflicts especially Syariah Court to discharge their duty effectively. Therefore, the aim of this study is to identify and discuss to what extent current legal structures able resolve cases relating to conversion to Islam. To achieve this, the research is enhanced by the library research and field study in order to obtain relevant data. …
Pemakaian Maqasid Al-Shari'ah Dalam Produk Takaful Keluarga Di Etiqa Takaful Berhad.,
2010
Universiti Malaya
Pemakaian Maqasid Al-Shari'ah Dalam Produk Takaful Keluarga Di Etiqa Takaful Berhad., Che Ismail Che Othaman
Student Works (2010-2019)
Takaful is one of the financial instruments that has its own importance. It is the fundamental to Islamic insurance and its existence is as an alternative to the present conventional insurance in the conventional world of banking and finance. Al-Takaful which is based on al-mudarabah, at-tabarru’ and al-wakalah is very supportive towards syara’ in facing the conventional insurance which contains the element of gharar, usury and gambling element. The existence of takaful has aroused various issues, among them is to what extend is the application of maqasid al-shari‘ah in all of the products offered either in Family Takaful or General …
Inter-American System,
2010
American University Washington College of Law
Inter-American System, Diego Rodriguez-Pinzon
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Behavioral Decision Theory And Implications For The Supreme Court's Campaign Finance Jurisprudence,
2010
Saint Louis University School of Law
Behavioral Decision Theory And Implications For The Supreme Court's Campaign Finance Jurisprudence, Molly J. Walker Wilson
Cardozo Law Review
America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as "speech" and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or …
