412 research outputs found
The Rise and Fall of Judicial Self-Restraint, 100 California Law Review: Translated from the Journal California Law Review 519 (2012)Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100
No full textThe following translation is completed according to the publication: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint”, 100California Law Review 519 (2012).Richard A. Posner is one of the most influential scholars who served as a federal appellate judge on the U.S Court of Appeals for the 7th Circuit. This article discusses the origins and characteristics of the doctrine of Judicial Self-Restraint. The author reviews James Bradley Thayer’s constitutional doctrine which argues that judges should overturn a legislative act only when there is no reasonable doubt that it is unconstitutional. According to Posner, Thayer’s doctrine was approved and utilized by great American jurists including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter and Alexander Bickel in their judicial and academic writings.
The paper suggests that one of the major reasons for declining the prominence of Judicial SelfRestraint was the development of modern Constitutional Theories (like originalism, textualism, moral interpretations, etc.) stimulated by the conservative backlash against the Warren Court’s Judicial Activism. Subsequently, Judge Posner makes the case for Judicial Pragmatism which emphasizes the significance of consequences over doctrine by offering the eight principles of legal pragmatism. And the author argues that the most highly regarded jurists in American legal history have always been pragmatists.The following translation is completed according to the publication: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint”, 100California Law Review 519 (2012).Richard A. Posner is one of the most influential scholars who served as a federal appellate judge on the U.S Court of Appeals for the 7th Circuit. This article discusses the origins and characteristics of the doctrine of Judicial Self-Restraint. The author reviews James Bradley Thayer’s constitutional doctrine which argues that judges should overturn a legislative act only when there is no reasonable doubt that it is unconstitutional. According to Posner, Thayer’s doctrine was approved and utilized by great American jurists including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter and Alexander Bickel in their judicial and academic writings.
The paper suggests that one of the major reasons for declining the prominence of Judicial SelfRestraint was the development of modern Constitutional Theories (like originalism, textualism, moral interpretations, etc.) stimulated by the conservative backlash against the Warren Court’s Judicial Activism. Subsequently, Judge Posner makes the case for Judicial Pragmatism which emphasizes the significance of consequences over doctrine by offering the eight principles of legal pragmatism. And the author argues that the most highly regarded jurists in American legal history have always been pragmatists
Richard Posner summarizes: Legal realism as the response to the challenges of today
No full textRichard Posner, law professor at the University of Chicago and an American federal judge, one of the founders of economic analysis of law is among the greatest living representatives of contemporary American jurisprudence. This paper begins with the analysis of the influences of Posner's life on his theoretical orientation. Further on, the author shines a light on Posner's pragmatic, anti-formalistic approach and tendency to use economic analysis to explain judicial behavior. For that purpose, Posner uses ideas developed by American legal realism. Nevertheless, Posner distances himself from classical American legal realism, striving to create compromise between formalism and realism. Therefore, Posner takes centrist position, the position of 'balanced' realism. Though Posner tries to follow the middle way between extremes, in the light of contemporary challenges, most of all technological, he perceives the future in the realistic approach. The author claims that the Posner's pragmatic spirit, formed in his family and developed by his education and profession (his experience), had prevailing influence on his choice of legal realism in his late years. Particularly today, when life is much 'faster' than law, the judges are those who have to adapt the law to life (not only in common law countries). Therefore it seems that really 'the path forward is the path of realism'
The UN convention on the law of the sea: an inefficient public good supplied by an inefficient organization
No full textThe Convention on the Law of the Sea is the still controversial outcome of the longest and perhaps most expensive international conference of the century. The most debated issue at UNCLOS III was the Convention's regime to govern seabed mining; differences of opinion on this regime have seriously challenged the purpose of the Conference and are likely to keep the Convention from becoming effective as international law. This paper is an inquiry into the economic causes for such an outcome. In Section II the efficieny of the Convention's regulation for minerals production from the ocean bed is analyzed. Section III deals with the efficiency of the Convention's production process at UNCLOS, focusing on the determinants of voting behaviour and on the rules of procedure used. The last section explores the rationale for alternative multilateral organizations for an efficient management of seabed mining.
Hantavirus pulmonary syndrome: encephalitis caused by virus Andes
No full textFil: Talamonti, Lionel. Sanatorio de la Seguridad Social Rosendo García. Intensive Care Unit; Argentina.Fil: Padula, Paula J. ANLIS Dr.C.G.Malbrán. Instituto Nacional de Enfermedades Infecciosas. Departamento de Virología; Argentina.Fil: Canteli, María Sol. Sanatorio de la Seguridad Social Rosendo García. Intensive Care Unit; Argentina.Fil: Posner, Federico. Sanatorio de la Seguridad Social Rosendo García. Intensive Care Unit; Argentina.Fil: Marczeski, Fanny Pires. ANLIS Dr.C.G.Malbrán. Instituto Nacional de Enfermedades Infecciosas. Departamento de Virología; Argentina.Fil: Weller, Carlos. Sanatorio de la Seguridad Social Rosendo García. Intensive Care Unit; Argentina.Hemorrhagic fever with renal syndrome and hantavirus pulmonary syndrome (HPS) are rodent-borne emerging diseases caused by members of the genus Hantavirus, family Bunyaviridae. Some species of hantavirus may cause encephalitis, but this is the first report in Andes virus associated to HPS
Recommended from our members
Law and Social Norms /
No full textWhat is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions? Eric Posner argues that social norms are sometimes desirable yet sometimes odious, and that the law is critical to enhancing good social norms and undermining bad ones. But he also argues that the proper regulation of social norms is a delicate and complex task, and that current understanding of social norms is inadequate for guiding judges and lawmakers. What is needed, and what this book offers, is a model of the relationship between law and social norms. The model shows that people's concern with establishing cooperative relationships leads them to engage in certain kinds of imitative behavior. The resulting behavioral patterns are called social norms. Posner applies the model to several areas of law that involve the regulation of social norms, including laws governing gift-giving and nonprofit organizations; family law; criminal law; laws governing speech, voting, and discrimination; and contract law. Among the engaging questions posed are: Would the legalization of gay marriage harm traditional married couples? Is it beneficial to shame criminals? Why should the law reward those who make charitable contributions? Would people vote more if non-voters were penalized? The author approaches these questions using the tools of game theory, but his arguments are simply stated and make no technical demands on the reader
The Left-to-Right Valence Mapping affects the Posner Cueing Task: on the independent contribution of reflexive and voluntary mechanisms of covert orienting of attention
No full textCue-to-target spatial correspondence in the Posner cueing task is known to facilitate responses under conditions of short asynchrony between a peripheral cue and a target shape. How this benefit
is modulated by target properties, such as faces expressing either the most positive or negative emotion in a set, remains an open question. We addressed this issue with the expectation that the spatial
mental representation of valence from facial expressions of emotion may influence motor reactivity in a way consistent with a compatibility effect based on the left-to-right valence mapping of
emotions. The results align with our expectations. Beyond a global facilitation of cue validity, the
spatial correspondence between the target side and its left-to-right valence mapping captured attention, producing a larger left-to-right advantage for the most negative emotional target presented in
the task (angry vs. happy face in Experiment 1, neutral vs. happy face in Experiment 2a, angry vs.
neutral face in Experiment 2b). This effect can be accounted for by a novel chronometric framework
that allows the extraction of the independent contributions of two well-known encapsulated components of involuntary covert orienting of attention from response latencies: an endogenous and
an exogenous latency component, the former directed towards the target and the latter towards the
cue. The results show that the left-to-right valence mapping impacts only the endogenous latency
component. This supports a model of involuntary covert orienting involving strongly overlapping
and intertwined reflexive and voluntary orienting mechanisms, with the latter depending on the
target’s properties
Shifting attention in viewer- and object-based reference frames after unilateral brain injury
No full textThe aims of the present study were to investigate the respective roles that object- and viewer-based reference frames play in reorienting visual attention, and to assess their influence after unilateral brain injury. To do so, we studied 16 right hemisphere injured (RHI) and 13 left hemisphere injured (LHI) patients. We used a cueing design that manipulates the location of cues and targets relative to a display comprised of two rectangles (i.e., objects). Unlike previous studies with patients, we presented all cues at midline rather than in the left or right visual fields. Thus, in the critical conditions in which targets were presented laterally, reorienting of attention was always from a midline cue. Performance was measured for lateralized target detection as a function of viewer-based (contra- and ipsilesional sides) and object-based (requiring reorienting within or between objects) reference frames. As expected, contralesional detection was slower than ipsilesional detection for the patients. More importantly, objects influenced target detection differently in the contralesional and ipsilesional fields. Contralesionally, reorienting to a target within the cued object took longer than reorienting to a target in the same location but in the uncued object. This finding is consistent with object-based neglect. Ipsilesionally, the means were in the opposite direction. Furthermore, no significant difference was found in object-based influences between the patient groups (RHI vs. LHI). These findings are discussed in the context of reference frames used in reorienting attention for target detection
Lavoro, Diritto e Democrazia. La norma giuslavoristica in cerca di legittimazione: rilievi critici
No full textIl volume ricostruisce i termini dell’incontro, indubitabil-mente tardivo, tra lavoro, diritto e democrazia, avvenuto con il costituzionalismo democratico del secondo dopoguerra, di cui è testimone la Carta fondamentale del 1948. La Costituzione italiana, infatti, dopo aver posto il lavoro alla base dell’edificio repubblicano, si impegna a combinare sovranità democratica e azione dei corpi intermedi, sfera individuale e dimensione collettiva quali elementi indefettibili del nesso che lega lavoro e cittadinanza: ne sono indicatori, l’agognato riconoscimento della libertà e del pluralismo sindacale (art. 39 Cost.) e il diritto al conflitto collettivo (art. 40), nonché l’impegno della Repubblica a perseguire l’uguaglianza sostanziale (art. 3, co. 2) non solo mediante la progressività fiscale ma soprattutto tramite il riconoscimento del diritto ad un lavoro stabile, dignitoso e sicuro (art. 4, 35 e 41 co. 2, Cost.), tale da assicurare un pieno ed effettivo godimento dei diritti di cittadinanza sociale (art. 36-38 Cost.).
A partire dai fondamenti normativi della “società sala-riale”, il volume affronta la sua crisi, indagata da una vasta pubblicistica che, considerando la tutela del lavoro un ingranaggio essenziale della democrazia (Castel 1995), si mostra preoccupata per il disagio (Galli 2011), le difficoltà (Zagrebelsky 2010) o i rischi (Reich 2008) che essa incontra, fino a diagnosticarne la crisi (Posner 2010) anche attraverso la semantica della guerra (Dardot, Laval 2016), dell’attacco (Gallino 2013) dell’assedio (Lalatta Costerbosa 2014): la democrazia emergerebbe, agli occhi degli odierni cittadini, sfigurata (Urbinati 2014) al punto da apparire senza libertà (Zacaria 2003) e senza popolo (Galli 2017): una democrazia dispotica (Caliberto 2011), un democrazia senza democrazia (Salvadori 2009), una Postdemocrazia (Crouch 2003) o, più semplicemente, una democrazia che non c’è (Ginsborg 2006).
Sulla scorta delle indagini condotte nell’ambito di diverse discipline, non solo giuridiche, attorno alla crisi democratica, anche motivata dalla crescente svalutazione del lavoro, il volume prova a mettere a fuoco il “deficit democratico” assumendo il punto di vista giuslavoristico e indagando i mutamenti che il diritto del lavoro ha subito sul piano delle fonti e della funzione stessa delle regole di disciplina del lavoro.
L’ipotesi di ricerca risiede nell’idea che ai diversi aspetti della crisi di legittimazione della regola giuslavoristica abbiano fatto seguito altrettanti testativi di sua ri-legittimazione, fuori dal paradigma del costituzionalismo democratico, fondati su un uso, anche spregiudicata, di tre grandi argomenti che partecipano della struttura costitutiva del diritto del lavoro: l’occupazione, l’uguaglianza e la certezza giuridica.
Tale fondamenti del diritto del lavoro classico paiono tuttavia declinati, nella legislazione del nuovo secolo, in modo affatto originale, con vero e proprio rovesciamento della loro tradizionale funzione, finendo per favorire la parte forte di un rapporto a naturale vocazione asimmetrica e acuire, a questo modo, la malattia che pretendono di curare
- …
