Papers by Arthur Jacobson
Duke University Press eBooks, Oct 25, 1994
Cardozo L. Rev., 1994
ENVIRONMENTAL PERFORMANCE REVIEW: SELF-REGULATION IN ENVIRONMENTAL LAW* ** Eric Bregman & Arthur ... more ENVIRONMENTAL PERFORMANCE REVIEW: SELF-REGULATION IN ENVIRONMENTAL LAW* ** Eric Bregman & Arthur Jacobson Introduction Americans have explored self-regulation as a strategy for the legal treatment of environmental issues only slowly and reluctantly. ...
Were I to speak to the topic of this conference, on unpublished and depublished opinions, I would... more Were I to speak to the topic of this conference, on unpublished and depublished opinions, I would undoubtedly say that the proliferation in American courts of the mass destruction of opinions is so horrible for so many reasons that it is hard to keep track. I can capture why it is in one thought: Unpublication and depublication are threats to the integrity of common law. If common law is just the record of what courts have done and why they have done it, suppressing a portion of that record creates a divergence between the law in the books and the law on the ground. Common law at its most rigorous holds that any adjudication may from the perspective of some future adjudication be understood to have made law, however insignificant. Unpublication breaks the link that common law establishes between lawmaking and adjudication. Where rules against the citation of unpublished opinions are in effect, unpublication permits judges (or whoever makes the publication decision) to pick and choose which cases will be available to serve as precedent and which will not. It thus allows judges to make decisions that are exempt from common law's fundamental discipline, that a judge must be prepared to see whatever decision he makes serve as precedent for a future decision. Depublication, for its part, conceals judicial behavior from public scrutiny. It erases from the public record an important jurisprudential phenomenon: judicial regret. It is that rarest of events: the cover-up of a virtuous deed. For what judges are hiding when they depublish an opinion is that, having set their minds on a certain course, they were willing to engage in further deliberation and prepared to say they were wrong. Together, unpublication and depublication insult democracy by endorsing what is, in effect, secret judicial action. On a professional level, they tempt the judiciary towards sloppy decision making. By avoiding public scrutiny of judicial behavior, they open the door to abuses of power-to corruption, favoritism, and an unbridledjudicial prerogative.' By embracing unpublication
Stoa, 2018
En dos momentos distintos de su Tratado teológico polÃtico, Spinoza asume lo que parecieran ser p... more En dos momentos distintos de su Tratado teológico polÃtico, Spinoza asume lo que parecieran ser posturas opuestas en torno a la posición de los "propagadores" del "conocimiento natural". Se pregunta si éstos pueden ser llamados profetas con toda justicia. En el capÃtulo 1, "De la profecÃa", Spinoza niega que sean profetas a pesar de que el conocimiento que propagan es, con toda certeza, profecÃa, de acuerdo con la definición de profecÃa que da Spinoza al principio del capÃtulo. En el capÃtulo 7, "De la interpretación de la Escritura", asume una perspectiva aparentemente desvinculada de los propagadores del conocimiento natural que, por implicación, nos obliga a considerar si en algún sentido son profetas después de todo. Este ensayo analiza la tensión entre estas posturas, además de una tensión semejante en los escritos de Maimónides sobre las leyes de la profecÃa.
Acknowledgments Introduction Arthur J. Jacobson and Michel Rosenfeld Cast and Chronology Part 1. ... more Acknowledgments Introduction Arthur J. Jacobson and Michel Rosenfeld Cast and Chronology Part 1. In the Heat of the Battle 1. Equal Protection for Votes Henry E. Brady 2. Law and Data: The Butterfly Ballot Episode Henry E. Brady, Michael C. Herron, Walter R. Mebane Jr., Jasjeet Singh Sekhon, Kenneth W. Shotts, and Jonathan Wand Part 2. The Machinery of Democracy in America 3. Disputing Elections Richard H. Pildes Part 3. The Decisions 4. A Badly Flawed Election Ronald Dworkin 5. Exchange between Ronald Dworkin and Charles Fried 6. Bush v. Gore: Three Strikes for the Constitution, the Court, and Democracy, but There Is Always Next Season Michel Rosenfeld 7. The Unbearable Rightness of Bush v. Gore Nelson Lund 8. The Ghostwriters Arthur J. Jacobson 9. Notes for the Unpublished Supplemental Separate Opinions in Bush v. Gore Burt Neuborne Part 4. American Perspectives 10. Anatomy of a Constitutional Coup Bruce Ackerman 11. The Many Faces of Bush v. Gore George P. Fletcher 12. Springtime...
This selection of the major works of constitutional theory during the Weimar period reflects the ... more This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms of legitimation to the rule of law. Only two of the authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors pla...
The paper explores the understanding of equity found in Shakespeare's last play, King Henry t... more The paper explores the understanding of equity found in Shakespeare's last play, King Henry the Eighth. It explains why conscience is at the root of equity. It follows Shakespeare's account of the conditions under which conscience, hence equity, is possible. Shakespeare's argument proceeds through four trials: that of Buckingham, of Henry's wife Katherine, of his chancellor, Cardinal Wolsey, and of Cranmer, the Archbishop of Canterbury. It holds that conscience, hence equity, is possible only once we are able to apprehend the honor belonging to each life, most especially the honor belonging to the life of an enemy. Apprehension, Shakespeare argues, must lead to appreciation; appreciation, to reconciliation. It is reconciliation that is the highest passion of the man of conscience, the incomparable precondition of equity, the conscience of the king.
At the beginning of his "Tractatus," Baruch Spinoza encounters a dilemma of prophecy, t... more At the beginning of his "Tractatus," Baruch Spinoza encounters a dilemma of prophecy, that one must have prophetic knowledge in order to know with certainty who it is that has prophetic knowledge. He escapes, or believes he escapes, this dilemma by asserting a democracy of knowledge, that all men have adequate knowledge of the divine, at least of the two attributes of the divine about which men have, in principle, equal knowledge and which form what we know as natural knowledge. Later in the "Tractatus," however, Spinoza implicitly acknowledges that natural knowledge is democratic in principle only, not in fact, and that the dilemma of prophecy recurs as a dilemma of expertise. It is Maimonides, not Spinoza, who is able to establish a true democracy of knowledge untroubled by any of these dilemmas and in so doing transforms prophecy into philosophy and science. He accomplishes this by means of a legal presumption.
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Papers by Arthur Jacobson