OAI Archive: Scholarly Commons @ UNLV Law
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100 entries most recently downloaded from the archive "Scholarly Commons @ UNLV Law"
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- Feminist Judging Matters: How Feminist Theory and Methods Affect The Process of Judgment.Linda L. Berger, Bridget J. Crawford & Kathryn M. Stanchi - unknownProfessor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments (...)No categories
- Realizing Dispute Resolution: Meeting the Challenges of Legal Realism Through Mediation.Robert Rubinson - 2018 - Nevada Law Journal 18 (1).No categories
- Invisible Adjudication in the U.S. Courts of Appeals.Rebecca Gill & Fatma Marouf - unknownNon-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that (...)No categories
- Speaking of Stories and Law.Linda H. Edwards - unknownA recurring question in narrative scholarship has been the relationship of narrative to law. Most narrative scholars agree that stories are central to law. As Stephen Paskey recently pointed out, stories are more than a tool for persuasion. They are embedded in law’s very structure. But how does that work? Are rules just stories articulated in a different form? We have barely begun to explore narrative’s roles, but it is already clear that, in the words of Meryl Streep, “it’s complicated.” (...)No categories
- Alternative Conceptions of Legal Rhetoric: Open Hand, Closed Fist.Linda L. Berger - unknownAn open-handed image of rhetoric presents an argument against the closed fist of logic and the “nasty, brutish, and short” depictions associated with legal rhetoric. In 1985, Robert Cover laid bare the field of pain and death where legal interpretation plays itself out in human consequences. Five years later, Gerald Wetlaufer described a landscape of brutal certainty as the backdrop for much of legal rhetoric. And the arena of criminal trials has long been recognizable as a bleak setting within which (...)
- Free Will Is No Bargain: How Misunderstanding Human Behavior Negatively Influences Our Criminal Justice System.Sean Daly - unknown
- Virtuous Billing.Randy D. Gordon & Nancy B. Rapoport - unknown
- Beyond Fairness: The Place of Moral Foundations Theory in Mediation and Negotiation.Jonathan M. Hyman - unknown
- A Rhetorician’s Practical Wisdom.Linda L. Berger - unknownFor three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal (...)
- Gadamer and Law.Francis J. Mootz - unknownHans-Georg Gadamer’s philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. In this collection, leading scholars consider the importance of Gadamer’s philosophy for ongoing disputes in legal theory. The work of prominent philosophers, including Fred Dallmayr, P. Christopher Smith and David Hoy, is joined with the work of leading legal theorists, such as William Eskridge, Lawrence Solum and Dennis Patterson, to provide an overview of the connections (...)
- Nietzsche and Law.Francis J. Mootz & Peter Goodrich - unknownLegal scholars have only recently begun to address the radical challenges for law and legal theory that follow from Friedrich Nietzsche's pathbreaking work. This collection brings together articles from leading thinkers who consider how Nietzsche's philosophical and rhetorical interventions illuminate the failures of contemporary legal theory. Part One considers the connections between law, political philosophy and Nietzsche's genealogy. Part Two provides a number of competing interpretations of Nietzsche's relevance for legal hermeneutics. Part Three includes articles that chart a course for (...)
- Hope and Misgiving About Lawyers, Consensus-Building, and Social Problem-Solving.Jennifer Gerarda Brown - unknown
- Review of Peter Cane, Responsibility in Law and Morality (2002). [REVIEW]Leslie C. Griffin - unknown
- Comparative Law: Its Purposes and Possibilities.Christopher L. Blakesley - unknownComparative law is much more than “matching laws.” Professor Grossfield’s short, lively book will certainly awaken its German reader to the value, indeed necessity, of comparative law and comparative insights in his or her own practice or scholarly work. This, he aims at the skeptic who may think of comparative law or foreign legal systems as arcane and useless fluff, too luxurious for the hard working “practical-minded” practitioner. Professor Grossfield throws the cold water of realization into this skeptic’s face. The (...)No categories
- A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.Francis J. Mootz - unknownPostmodern thinking puts severe stress on the project of legal theory. The philosophical critique of grand narratives, coupled with the radically pragmatic return to localized practices, has rendered theorizing suspect. Theory appears to be a quaint vestige of previous "bad faith" refusals to accept the finitude of human existence. But the postmodern position is even more complex, because postmodern anti-theorists tend to employ perplexing jargon and wield sophisticated and obscure concepts in their work. The postmodern puzzle is whether one can (...)
- Not Interaction but Melding - The "Russian Dressing" Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers.Peter Brandon Bayer - unknownEven after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and (...)
- The Irrelevance of Contemporary Academic Philosophy for Law: Recovering the Rhetorical Tradition.Francis J. Mootz - unknownThis short paper appears in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and (...)
- Legal Interpretation: The Window of the Text as Transparent, Opaque, or Translucent.George H. Taylor - unknownIt is a common metaphor that the text is a window onto the world that it depicts. I want to explore this metaphor and the insights it may offer us for better understanding legal interpretation. As in the opening epigraph from James Boyd White, I shall develop the metaphor of the text as window in three ways: the text may be transparent, opaque, or translucent. My goal will be to argue that the best way to understand legal interpretation is to (...)
- Deconstructing the Models of Judges: Legal Hermeneutics and Beyond the Subject-Object Paradigm.Lenio Luiz Streck - unknownThe linguistic-ontological turn has brought uncountable consequences to the interpretation of Law. However, dogmatic-legal knowledge remains hostage to a judicial protagonism, a philosophy of consciousness that, together with legal discretion, represent two sides of the same coin. The criticism of judicial discretion is a matter of democracy: decisions must be coherent, assuring the integrity of Law by reinforcing the normative power of the Constitution from which arises the need for correct answers in Law.
- The Existential Subject of Rights and Private Law: The Example of the Indian Issue in Brazil.Jose Carlos Moreira da Silva Filho - unknownThe issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening (...)
- Hermeneutics- The Path of the Hermeneutic-Ontological Shift and the Decolonial Shift.Celso Luiz Ludwig - unknownThe purpose of the reflections that follow is to highlight the meaning and importance of the hermeneutic shift produced by the work of Gadamer, to consider some of his themes and categories, and to extend the meaning of this hermeneutic rationality to the legal field in terms of a new conception of interpretation. A second objective is to catch sight of new theoretical perspectives, having as a starting point the unfolding of practical philosophy into hermeneutic philosophy carried out by Gadamer. (...)
- The Empty Tomb: Post-Critical Legal Hermeneutics.Peter Goodrich - unknownThere is nothing more refreshing than a successful failure. A momentary flaring of flamboyance. A near miss. Fifteen weeks as media monarchs; a good part—a small part—of a decade as a political threat to the order of the academy, if not the stability of the system. The affective bonds and the institutional disruption of youthful and latterly not-so-young dissidents and socialist sympathizers within the law schools definitely had their excitements, their impetus and novelties, and then they grew old, got rejected, (...)
- Gadamer and Ricoeur: Critical Horizons for Contemporary Hermeneutics.Francis J. Mootz & George H. Taylor - unknownHans-Georg Gadamer and Paul Ricoeur were two of the most important hermeneutical philosophers of the twentieth century. Gadamer single-handedly revived hermeneutics as a philosophical field with his many essays and his masterpiece, Truth and Method. Ricoeur famously mediated the Gadamer-Habermas debate and advanced his own hermeneutical philosophy through a number of books addressing social theory, religion, psychoanalysis and political philosophy. This book brings Gadamer and Ricoeur into a hermeneutical conversation with each other through some of their most important commentators. Twelve (...)
- The Quest to Reprogram Cultural Software: A Hermeneutical Response to Jack Balkin's Theory of Ideology and Critique.Francis J. Mootz - unknownCritical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise (...)
- Law and Philosophy, Philosophy and Law.Francis J. Mootz - unknownA roundtable discussion about the relevance of contemporary hermeneutical philosophy for legal theory raises a foundational question often neglected in interdisciplinary articles: What is the relationship between law and philosophy? The burgeoning scholarship drawing connections between legal theory and philosophy increasingly has come under attack for displaying a naive view about the potential legitimate exchanges between philosophers and legal academics. I have written elsewhere at length about the important insights that philosophical hermeneutics can lend to jurisprudential discussions of the rule (...)
- Nietzschean Critique and Philosophical Hermeneutics.Francis J. Mootz - unknownThis article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory. Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical (...)
- Mindfulness, Emotions, and Ethics: The Right Stuff?Ellen Waldman - unknownThis essay celebrates Leonard Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. I discuss recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. The Article also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our “reasoning” selves. Lastly, the author examines what Riskin has, in an earlier work, described as (...)
- The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas and Ricoeur.Francis J. Mootz - unknownThis paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by (...)
- On Philosophy in American Law.Francis J. Mootz (ed.) - 2009 - Cambridge University Press.Karl Llewellyn and the course of philosophy in American law -- Philosophical perspectives on law -- Areas of philosophy and their relationship to law -- Philosophical examinations of legal issues -- Law, rhetoric, and practice theory -- Commentaries-- Questioning the relationship between philosophy and American Law.