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Luz Estella Nagle, The Rule of Law in Latin America, in Latin America Democracy: Emerging Reality or Endangered Species? (Richard Millett et al. eds., 1st ed., 2008)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Nothing “Errant” About It: The Berman and Midkiff Conference Notes and How the Supreme Got to Kelo with Its Eyes Wide Open, in Private Property, Community Development & Eminent Domain (Robin Paul Malloy ed., Ashgate, 2008)Clicking on the button will copy the full recommended citation.
This Essay draws on the Supreme Court's conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O'Connor's assertion in her Kelo v. City of New London dissent that there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff. The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O'Connor found objectionable was essential to the Court's holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O'Connor's suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect.
The Court's decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court's public use precedents. A more compelling dissent by Justice O'Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff's deference to the legislature was a mistake that should be corrected by overruling the prior cases.
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Tim Kaye, Law and Risk: An Introduction, in Risk and the Law (Gordon Woodman and Diethelm Klippel eds., Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
Although lawyers sometimes use terms such as 'risk distribution' and 'assumption of risk,' it is striking that there has been a dearth of scholarship on the relationship between law and risk. This paper seeks to start to address that deficiency and urges scholars to devote more time to this important area. It suggests that risk analysis in the past has been hampered by both confusion over terminology and fundamental misunderstanding of the differences between - and relevance of - subjective and objective risk. It argues that, once these details are properly understood, looking at law from the perspective of the risks involved dovetails with other, more familiar, ideas such as Henry Maine's movement from Status to Contract and John Stuart Mill's 'harm principle'. In this vein, it considers developments of the law within Europe and attempts to relate them to the growth of what has become known as the 'Risk Society'. Focusing particularly on English and German law, it also draws a number of comparisons with the position in the United States. Legal scholars who continue to omit a systematic discussion of risk from their analysis may be overlooking a valuable perspective.
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Tim Kaye, Risk and Predictability in English Common Law, in Risk and the Law (Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
It is often said that the biggest challenge facing private law is that posed by the continual need to choose between certainty and justice. Certainty is a worthy goal, it is said, because everyone knows exactly where they stand and judicial decision-making can proceed from clearly-articulated statements of legal principle. On the other hand, the pursuit of certainty may not allow for sufficient differentiation between different circumstances. Justice may modify this problem, but only by introducing uncertainty.
Such an account may be thought so familiar as hardly to be worth recounting. Yet this paper seeks to challenge this dichotomy by suggesting that it is the product of a very peculiar combination of perspectives. Philosophically, the dichotomy is problematic only to legal positivism and allied schools of thought. Even then, it presents difficulties only if viewed from a particular temporal perspective as well: that is, after the events in question have already taken place and have become known.
It is argued that this combination of perspectives is singularly unhelpful. It fails to provide any sort of systematic explanation for a very large number of cases, preferring instead to dismiss them as 'policy decisions'. Such dismissal is not so much an explanation as an abdication of explanation. This paper suggests that, if we move from an ex post facto positivistic perspective to one that takes an ex ante approach which focuses on the predictability of risk, then not only does the certainty-justice dilemma cease to be problematic; it also provides a much more plausible and persuasive account of the case law.
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Rebecca C. Morgan, Future of Elder Law & Conclusion, in Theories on Law & Aging (Springer Publications, 2008)Clicking on the button will copy the full recommended citation.
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Roy Balleste, A Hypothetical Case Study: Creating AI Assistants in the Law Library, in Public Services in Law Libraries: Evolution and Innovation in the 21st Century (Barbara Bintliff and Lee F. Peoples eds., Hawthorn Press, Inc., 2008)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, Legal Considerations, in Conservation and Biodiversity Banking (Nathaniel Carroll et al. eds., Routledge, 2007)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, Rapanos and Wetland Mitigation Banking, in The Supreme Court and the Clean Water Act: Five Essays (Vermont Law School's Land Use Institute, Vermont Journal of Environmental Law, 2007)Clicking on the button will copy the full recommended citation.
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James W. Fox, Black Reconstruction, in Encyclopedia of Race and Racism (Gale-McMillan Reference, 2007)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan, Health Decisions and Directives About the End of Life, in Handbook of Gerontology: Evidence-Based Approaches to Theory, Practice & Policy (Wiley, 2007)Clicking on the button will copy the full recommended citation.