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. Roger C. Cramton, Beyond the Ordinary Religion.
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  2. Christyne J. Vachon, Tiaras, Queen Bees, Imposters and the Board Room: Lean In & Women in Corporate Governance.
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  3. 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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  4. 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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  5. Fuat Gursozlu, Political Liberalism and the Fate of Unreasonable People.
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  6. John Stinson, Back to Fundamentals: The Worsening Results of Ignoring the Social Contract in Baltimore City.
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  7. Onora O'Neill, Reason and the Resolution of Disputes.
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  8. Paul G. Haskell, Teaching Moral Analysis in Law School.
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  9. Richard Stith, On Death and Dworkin: A Critique of His Theory of Inviolability.
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  10. Andrew Koppelman, On the Moral Foundations of Legal Expressivism.
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  11. Deborah Hellman, Symposium - the Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives: Introduction.
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  12. Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation.
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  13. 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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  14. Paul V. Niemeyer, Law and Conscience.
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  15. 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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  16. 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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  17. John Finnis, On the Practical Meaning of Secularism.
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  18. Patricia Sayre, Socrates Is Mortal: Formal Logic and the Pre-Law Undergraduate.
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  19. 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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  20. Paul H. Robinson & Robert O. Kurzban, Concordance & Conflict in Intuitions of Justice.
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  21. 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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  22. 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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  23. 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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  24. Matthew D. Adler, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis.
    Well-Being and Fair Distribution provides a rigorous and comprehensive defense of the “social welfare function” as a tool for evaluating governmental policies. In particular, it argues for a “prioritarian” social welfare function: one that gives greater weight to well-being changes affecting worse-off individuals. In doing so, the book draws on many literatures: in theoretical economics, applied economics, philosophy, and law. Topics addressed include the following: the nature of well-being and the possibility of interpersonal comparisons; the measurement of well-being via “utility” (...)
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  25. Jay Tidmarsh, Whitehead's Metaphysics and the Law: A Dialogue.
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  26. John M. Finnis, Natural Law and the "Is"-"Ought" Question: An Invitation to Professor Veatch.
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  27. 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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  28. Guyora Binder, The Culpability of Felony Murder.
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  29. 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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  30. 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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  31. 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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  32. Paul H. Robinson, The Role of Moral Philosophers in the Competition Between Deontological and Empirical Desert.
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  33. 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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  34. 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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  35. 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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  36. Paul Robinson, Some Doubts About Argument by Hypothetical.
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  37. 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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  38. 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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