OAI Archive: NELLCO Legal Scholarship Repository

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100 entries most recently downloaded from the archive "NELLCO Legal Scholarship Repository"

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  1. Joshua D. Hawley, Return to Political Theology.
    My aim in what follows is to employ N.T. Wright’s powerful and provocative analysis of Paul’s political gospel as a critical perspective on the foundational claims of the Great Separation. Because the very possibility of political theology is disputed in many quarters, I begin in Part I with a defense of political theology as critical theory. In Part II, I turn to Paul’s political gospel, tracing Wright’s reconstruction of its central terms, including the Pauline critique of empire. In Part III, (...)
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  2. Thomas O. Main, The Word Commons and Foreign Laws.
    Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the (...)
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  3. David Luban, Human Rights Thinking and the Laws of War.
    In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.” Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general (...)
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  4. David Luban, Time-Mindedness and Jurisprudence.
    Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; analytic jurisprudence studies only (...)
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  5. Laura Krugman Ray, The Hindrance of a Law Degree": Justice Kagan on Law and Experience.
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  6. Randy J. Kozel, The Scope of Precedent.
    The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and (...)
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  7. Nan D. Hunter, Pluralism and its Perils: Navigating the Tension Between Gay Rights and Religious Expression.
    The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake. The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the (...)
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  8. David Lyons, Legal Formalism and Instrumentalism-a Pathological Study.
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  9. Imer Flores, The Legacy of Ronald Dworkin : A Legal Theory and Methodology for Hedgehogs, Hercules, and One Right Answers.
    In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions (...)
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  10. Karen Breda, Book Review: Minds, Brains, and the Law: The Conceptual Foundations of Law and Neuroscience. [REVIEW]
    Review of Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience by Michael S. Pardo and Dennis Patterson, published by Oxford University Press.
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  11. Amanda C. Pustilnik, Rethinking Unreasonableness: A Comment on Nita Farahany's "Law and Behavioral Morality".
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  12. Robert S. Summers, On Identifying and Reconstructing a General Legal Theory – Some Thoughts Prompted by Professor Moore's Critique.
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  13. Robert S. Summers (1981). Pragmatic Instrumentalism in Twentieth Century American Legal Thought a Syntheshesis and Critique of Our Dominant General Theory About Law and its Use. Cornell Law Association.
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  14. Steven H. Shiffrin, Liberalism, Radicalism, and Legal Scholarship.
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  15. O. Lee Reed & Florian A. Stamm, The Connection Between a Property-Based Legal System and National Prosperity: Example From a Divided Germany Reunified.
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  16. Robert S. Summers, Legal Institutions in Professor H.L.A. Hart's Concept of Law.
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  17. Rett R. Ludwikowski, Constitutionalization of Human Rights In Post-Soviet States and Latin America: A Comparative Analysis.
  18. Robert S. Summers, A Note on Symbolic Logic and the Law.
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  19. Oliver O'Donovan, 2001 Natural Law Lecture: The Path.
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  20. Dante Figueroa, Twenty-One Theses on the Legal Legacy of the French Revolution in Latin America.
  21. Jeffrey J. Rachlinski, Heuristics, Biases, and Philosophy.
    Commenting on Professor Cass Sunstein's work is a daunting task. There is simply so much of it. Professor Sunstein produces scholarship at a rate that is faster than I can consume it. Scarcely an area of law has failed to feel his impact. One cannot today write an article on administrative law, free speech, punitive damages, Internet law, law and economics, separation of powers, or animal rights law without addressing one or more of Sunstein's papers. And his work is typically (...)
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  22. Robert George (2007). Natural Law. American Journal of Jurisprudence 52:55-76.
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  23. Samuel J. M. Donnelly, A Personalist Jurisprudence, the Next Step.
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  24. Fred Lawrence, David Novak on Natural Law: An Appraisal.
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  25. Roger C. Cramton, Beyond the Ordinary Religion.
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  26. Christyne J. Vachon, Tiaras, Queen Bees, Imposters and the Board Room: Lean In & Women in Corporate Governance.
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  27. Elizabeth Chamblee Burch, Group Consensus, Individual Consent.
    Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about (...)
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  28. Lawrence B. Solum, Communicative Content and Legal Content.
    This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules (...)
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  29. Fuat Gursozlu (2014). Political Liberalism and the Fate of Unreasonable People. Touro Law Review 30 (1):35-56.
  30. John Stinson, Back to Fundamentals: The Worsening Results of Ignoring the Social Contract in Baltimore City.
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  31. Onora O'Neill, Reason and the Resolution of Disputes.
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  32. Paul G. Haskell, Teaching Moral Analysis in Law School.
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  33. Richard Stith, On Death and Dworkin: A Critique of His Theory of Inviolability.
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  34. Andrew Koppelman, On the Moral Foundations of Legal Expressivism.
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  35. Deborah Hellman, Symposium - the Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives: Introduction.
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  36. Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation.
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  37. Michael Pappas, Anti-Waste.
    It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for (...)
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  38. Paul V. Niemeyer, Law and Conscience.
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  39. C. Emerson Talmage, Do Survival Values Form a Sufficient Basis for an Objective Morality: A Realist's Appraisal of the Rules of Human Conduct.
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  40. Hugh J. Ault & Mary Ann Glendon, The Importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons.
    This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and (...)
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  41. John Finnis, On the Practical Meaning of Secularism.
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  42. Patricia Sayre, Socrates Is Mortal: Formal Logic and the Pre-Law Undergraduate.
  43. Paul H. Robinson, Natural Law & Lawlessness: Modern Lessons From Pirates, Lepers, Eskimos, and Survivors.
    The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and (...)
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  44. Paul H. Robinson & Robert O. Kurzban, Concordance & Conflict in Intuitions of Justice.
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  45. Stephen R. Perry, Political Authority and Political Obligation.
    Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said (...)
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  46. Anita Allen, Natural Law, Slavery, and the Right to Privacy Tort.
    In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common (...)
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  47. Christopher S. Yoo, Introduction, in Critical Concepts in Intellectual Property Law: Copyright.
    The two-volume set entitled Critical Concepts in Intellectual Property Law: Copyright brings together a thought-provoking collection of landmark and recent scholarship on copyright. Section 1 of Volume I focuses on the history of copyright, with Tyler Ochoa and Mark Rose providing an example of the prevailing interpretation of the history and articles by Thomas Nachbar and by William Treanor and Paul Schwartz offering fresh takes on the early English and American experiences. Section 2 focuses on copyright’s philosophical foundations, framed by (...)
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  48. Matthew D. Adler (2011). Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis. Oxford University Press.
    This book addresses a range of relevant theoretical issues, including the possibility of an interpersonally comparable measure of well-being, or “utility” metric; the moral value of equality, and how that bears on the form of the social welfare function; social choice under uncertainty; and the possibility of integrating considerations of individual choice and responsibility into the social-welfare-function framework. This book also deals with issues of implementation, and explores how survey data and other sources of evidence might be used to calibrate (...)
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  49. Jay Tidmarsh, Whitehead's Metaphysics and the Law: A Dialogue.
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  50. John M. Finnis, Natural Law and the "Is"-"Ought" Question: An Invitation to Professor Veatch.
    This Article invites Professor Henry Veatch to consider some of Finnis' previous work. Finnis asserts that his work presents "serious questions" for those who interpret Aristotle and Acquinas in the way the Veatch does and invites Veatch to respond.
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  51. Stanley L. Paulson, On Transcendental Arguments, Their Recasting in Terms of Belief, and the Ensuing Transformation of Kelsen's Pure Theory of Law.
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  52. Guyora Binder, The Culpability of Felony Murder.
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  53. Abraham Drassinower, A Note on Incentives, Rights, and the Public Domain in Copyright Law.
    The article discusses various aspects of copyright law, including public domain, incentives, and rights. The author examines the expansion of U.S. copyright law protection since the court's decision in the case of Donaldson v. Beckett in 1774. He also delves into other topics such as creative minimalism, instrumentalism, and copyright scope limitations. In the author's opinion, the foundation of copyright law is based on the theory of providing incentives to people for their creative works.
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  54. Mario Biagioli, Genius Against Copyright: Revisiting Fichte's Proof of the Illegality of Reprinting.
    The article discusses the dichotomy between idea and expression in copyright law in 2012 by focusing on philosopher Johann Gottlieb Fichte's 1793 work "Proof of the Unlawfulness of Reprinting: A Rationale and a Parable." The author argues that the legal community has overlooked parts of Fichte's claims and have chosen to only apply personal expression to authors. Originality in authorship is also examined in defining what is and is not covered under U.S. copyright law.
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  55. David A. Skeel, The Paths of Christian Legal Scholarship.
    The history of twentieth century Christian legal scholarship– really, the absence of Christian legal scholarship in America’s elite law schools– can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders (...)
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  56. Paul H. Robinson, The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert.
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  57. Patrick S. Shin, Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law.
    A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law. My purpose in this paper is to focus directly on what might be (...)
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  58. Stephen Morse, The Non-Problem of Free Will in Forensic Psychiatry and Psychology.
    This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product (...)
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  59. Matthew Lister (2010). Immigration, Association, and the Family. Law and Philosophy 29 (6):717-745.
    In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what (...)
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  60. Paul Robinson, Some Doubts About Argument by Hypothetical.
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  61. Matthew D. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.
    The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...)
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  62. Cristina M. Rodriguez, Language and Participation.
    In this piece, I tackle a current subject of popular controversy—whether growing multilingualism in the United States imperils the future of American democracy. I offer a positive theory, centered on the value of democratic participation, of how a society like the United States should approach the multilingualism of its population. I conclude that embracing bilingualism in individuals and multilingualism in society is more likely to make linguistic pluralism socially functional and to sustain the vitality of public and social institutions than (...)
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