364,074 research outputs found

    Rhetoric and Reality in the Tax Law of Charity

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    This Article contrasts the rhetoric of public benefit connected to charity in the law with the reality of private control of charitable organizations. It argues that the tension between the rhetoric and reality have produced norms of entitlement that undermine taxation. It offers an approach to the role of charity under the law by defining the obligations of government in a just society, qualifying the economic framework dominant in the literature concerning charities, and identifying what private charity can achieve that governments cannot. This Article concludes by endorsing the charitable deduction in the tax law on terms consistent with this revised approach

    After the Great Recession: Law and Economics\u27 Topics of Invention and Arrangement and Tropes of Style

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    AFTER THE GREAT RECESSION: LAW AND ECONOMICS’ TOPICS OF INVENTION AND ARRANGEMENT AND TROPES OF STYLE by Michael D. Murray Abstract The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the Chicago School —because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School\u27s positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and other financial practices are the result of decades of neoclassical economic assumptions regarding the efficiency of unregulated markets, the near-religious-like devotion to a hyper-simplified conception of rationality and self-interest with regard to the persons and institutions participating in the financial system, and a conception of laws and government policies as incentives and costs in a manner that excludes the actual conditions and complications of reality. This Article joins the critical conversation on the Great Recession and the role of law and economics in this crisis by examining neoclassical and contemporary law and economics from the perspective of legal rhetoric. Law and economics has developed into a school of contemporary legal rhetoric that provides topics of invention and arrangement and tropes of style to test and improve general legal discourse in areas beyond the economic analysis of law. The rhetorical canons of law and economics—mathematical and scientific methods of analysis and demonstration; the characterization of legal phenomena as incentives and costs; the rhetorical economic concept of efficiency; and rational choice theory as corrected by modern behavioral social sciences, cognitive studies, and brain science—make law and economics a persuasive method of legal analysis and a powerful school of contemporary legal rhetoric, if used in the right hands. My Article is the first to examine the prescriptive implications of the rhetoric of law and economics for general legal discourse as opposed to examining the benefits and limitations of the economic analysis of law itself. This Article advances the conversation in two areas: first, as to the study and understanding of the persuasiveness of law and economics, particularly because that persuasiveness has played a role in influencing American economic and financial policy leading up to the Great Recession; and second, as to the study and understanding of the use of economic topics of invention and arrangement and tropes of style in general legal discourse when evaluated in comparison to the other schools of classical and contemporary legal rhetoric. I examine each of the rhetorical canons of law and economics and explain how each can be used to create meaning, inspire imagination, and improve the persuasiveness of legal discourse in every area of law. My conclusion is that the rhetorical canons of law and economics can be used to create meaning and inspire imagination in legal discourse beyond the economic analysis of law, but the canons are tools that only are as good as the user, and can be corrupted in ways that helped to bring about the current economic crisis

    Law and Rhetoric

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    A Review of Heracles\u27 Bow: Essays on the Rhetoric and Poetics of the Law by James Boyd Whit

    Empagran’s Empire: International Law and Statutory Interpretation in the US Supreme Court of the 21st Century

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    In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. The article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with a forward‑looking globalization rhetoric finds itself mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of slave trade. This has implications for our understanding of international law today, and for its place in its own history. Paul Stephan has responded to the essay: http://ssrn.com/abstract=155987

    Loss

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    Within Republican political circles, numerous state legislatures, and even the U.S. Congress, advocating caps on noneconomic damages in tort suits is in vogue, as part of the ongoing politics of tort reform. Yet, the distinction between economic and noneconomic damages is nonsensical. It does not originate in the discipline of economics, but seems instead to be purely a rhetorical invention of those who wish to limit damages by any means politically possible. But law reform based on sheer rhetoric should be shunned; unprincipled rhetoric is no substitute for justificatory reasons, and to make laws without reasons exemplifies arbitrariness and injustice. The focus of this article is relatively narrow--restricted primarily to revealing the incoherence of a purported distinction between economic and noneconomic harms or losses--the author\u27s pursuit of this point reveals, along the way, certain similarities between the common law of tort and the main ideas of modem economics. Quite often, those who defend the common law approach to torts contrast it with an economic interpretation of this area of law. While there may be areas where economics and tort law conflict, understanding loss is not one of them

    La Rhétorique d'Aristote et les études de droit

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    This paper attempts to link Aristotle's Rhetoric and the contemporary study of law. In the first part, Aristotle's Rhetoric is presented generally, with emphasis on its objective, scope and methodology ; the field of study also delimited in relation to logic and dialectics. The second part shows the relevancy and interest of the Rhetoric in three fundamental areas of the study of law, namely, openness of mind towards psychological and social aspects of law, learning the art of argumentation and methodology of intellectual work in general. The conclusion invites the reintroduction of the teaching of rhetoric in the curriculum

    Constitutional Law and Rhetoric

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    What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project. When properly grounded, constitutional law and rhetoric reveals how proof and persuasion operate in constitutional argument. The rhetorical perspective recognizes that our deepest constitutional disputes turn on value argument. Acknowledging value argument as a legitimate part of constitutional discourse in turn promotes rational discussion of the hard choices inherent in the Court’s most vexing cases. A fully developed constitutional law and rhetoric framework thus helps us assess these vexing cases and confront what we really fight about when we fight about the Constitution

    Constitutional Law and Rhetoric

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    Constitutional Law and Rhetoric

    Get PDF
    What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project. When properly grounded, constitutional law and rhetoric reveals how proof and persuasion operate in constitutional argument. The rhetorical perspective recognizes that our deepest constitutional disputes turn on value argument. Acknowledging value argument as a legitimate part of constitutional discourse in turn promotes rational discussion of the hard choices inherent in the Court’s most vexing cases. A fully developed constitutional law and rhetoric framework thus helps us assess these vexing cases and confront what we really fight about when we fight about the Constitution

    Geneva rhetoric, national reality : the political economy of introducing plant breeders' rights in Kenya

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    The article is about implementing obligations under Article 27.3(b) of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). However, concerned with the fragmentation of international law in a globalised world, the article uses Kenya as a case study to interrogate the apparent choice and latitude in Article 27.3(b). At the TRIPS Council, Kenya has sought to locate Article 27.3(b) within a wider frame by adroitly norm-borrowing, and it canvassed for integrating norms and principles from other multilateral agreements into TRIPS. Yet, when introducing plant breeders' rights into domestic law, Kenya fails to either explore the apparent latitude or deliver on its rhetoric in Geneva. I explain this decoupling between Geneva rhetoric (ritual) and domestic law (behaviour) as another symptom of what Steinberg [(2002), ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’, International Organization, 56 (2), pp. 339–74)] characterises as ‘organised hypocrisy’ of the World Trade Organisation. In demonstrating that fragmentation in global legal architecture may not automatically emerge in domestic law, the article draws out the significance of attending to a domestic political economy of law-making
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