Suchergebnisse

Deconstruction has already happened on the Supreme Court. Not only can no member of the Court really believe that "the law" (self-invented by the very Court it is supposed to govern!) can constrain the result in any individual case, but its members have also convinced themselves that they have no time to be concerned with dispensing justice to the parties. The justificatory legal language used in judicial opinions is not what our law teachers told us it was. The justificatory legal language is not provided to explain—much less constrain—the result in the case. Rather, it is a mode of couching the personal legislative preferences of unelected judges in the publicly venerated language of a judicial decree.

An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this article is that all theories of statutory interpretation can only do that much and no more.

The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. Legislators, policymakers and the general public will quote and rely upon the Commission's key finding that exposure to sexually violent materials "bears a causal relationship" to acts of sexual violence, unaware that the principal drafter of the Report played down this confidence in a separately published academic essay.

The destructive potential of nuclear weapons is so enormous as to call into question any and all received rules of international law regarding the trans-boundary use of force. Many of the old rationales for these rules no longer apply. At the same time, the shared values underlying the rules apply more emphatically than ever, for the stake is global survival. I have tried to suggest some of the questions that must be asked about as apparently "simple" an incident as the Israeli attack on the nuclear reactor in Iraq.

Although a free press is an integral part of democratic governance, intercountry adoption is one case in which the media makes it virtually impossible for governments to send children abroad for adoption. A country (State A) which gives up a child for intercountry adoption should receive a "credit" for that child which will entitle any other family within State A that may want to adopt a child to priority on the list at the Vatican. The second major function for the Intercountry Adoption Agency might be called the "annual report" function. All adoptive parents who take a child from the Vatican must sign a pledge to write an annual report on the welfare of the child.

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations of what law was when their case or controversy arose, and instead pull the rug out from under their feet with new law based on the judges' own idea of general social and governmental policy? Isn't this just a case of judges appropriating the rights of the parties, without compensation, in order to announce new social legislation? Isn't this the very definition of injustice?

Machiavelli leaves one with both an optimistic and a pessimistic prognostication for the post-Cold War world. On the one hand, the end of that conflict has opened the way for the spread of liberal, constitutional regimes, which he would say are inclined to be more and more meticulous in honoring their commitments. On the other, the temptation to use force to create new facts and thereby force international law into new paths will remain as long as politics is practiced. The contemporary relevance of Machiavelli may be seen in that he urged both realities upon us. I focus on a single incident that postdated the end of the Cold War—the show of force by the People's Republic of China (PRC) in the Taiwan Strait in March 1996.

For every definable term in international law there are clear cases and fuzzy cases. Everyone accepts that the term "state" applies to Paraguay, Poland, Portugal and over a hundred other clear cases, but does it apply to Puerto Rico, Western Samoa, the Isle of Man, the Channel Islands, Gibraltar, or the Vatican City? The word "treaty" has thousands of clear applications, but does it apply to an exchange of faxes between two governments or a handshake between two diplomats at a cocktail party? In addition to ambiguities of this kind, international law is replete with deliberately created ambiguities. One of the most interesting situations in recent years that illustrates in several important ways the role of deliberate ambiguity in international law is the Two China Problem.

This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively is offered.