DOCSLIB.ORG

1977 Number 1

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
1977 Number 1 NORTHERN KENTUCKY LAW REVIEW Volume 4 1977 Number 1 THE EXCLUSIONARY RULE: DOWN AND ALMOST OUT Bernard J. Gilday, Jr. ................................ 1 SYNERGISTIC JURISPRUDENCE AND EUGEN EHRLICH O vid C . L ew is ....................................... 21 PROFESSOR EHRLICH'S CZERNOWITZ SEMINAR OF LIVING LAW W illiam Herbert Page .............................. 37 THE KENTUCKY LONG ARM STATUTE: HOW "LONG" IS IT? K urt A . Philipps ..................................... 65 LEGITIMIZING THE ADMINISTRATIVE STATE: THE JUDICIAL DEVELOPMENT OF THE NONDELEGATION DOCTRINE IN KENTUCKY Edward H. Ziegler, Jr. .. ......................... 87 COMMENTS A CONSTITUTIONAL ANALYSIS OF KENTUCKY'S NONCOMMERCIAL BAIL BONDSMEN SYSTEM ...................................... 121 TRANSFER OF JURISDICTION UNDER THE NEW KENTUCKY JUVENILE COURT ACT ......................................... 141 SIXTH CIRCUIT NOTES CONSTITUTIONAL LAW-SEARCH AND SEIZURE-United States v. Carriger,541 F.2d 546 (6th Cir. 1976) .................... 161 LIMITATION OF ACTIONS-SECURITIES EXCHANGE ACT-IDS Progressive Fund, Inc. v. First of Michigan Corp., 553 F.2d 340 (6th Cir. 1976) .................................. 175 BOOK REVIEWS RESEARCH IN MEDICAL LITERATURE AS TRIAL PREPARATION. BY WESLEY GILMER, JR ....................................... 183 FOR THE DEFENSE. BY F. LEE BAILEY ....................... 187 "... WE ARE THE LIVING PROOF . ." THE JUSTICE MODEL FOR CORRECTIONS. BY DAVID FOGEL ......................... 190 UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA. BY JEROLD S. AUERBACH .......................... 192 NORTHERN KENTUCKY LAW REVIEW Volume 4 1977 Number 1 MICHAEL E. MORTHORST Editor-in-Chief RICHARD L. BELL Managing Editor BEATRICE W. ADAMS GREGORY L. ADAMS GARY W. DEEDS Technical Editor Articles Editor Business Editor LISA L. GROSSE RONALD C. HARRIS CHRISTINE P. HASKETT Comments Editor Articles Editor Book Review Editor DENNIS H. HEITZ TERRY F. LENICK LINDA M. STALLINGS Notes Editor Candidates Editor Manuscript Editor MEMBERS CHARLES T. ANDERSON STANTON R. MILLER DAVID L. BARTH WILLIAM H. HAWKINS RODERICK J. MORTIMER PHYLLIS G. BOSSIN GURNEY A. JOHNSON L. EDWIN PAULSON, JR. JOHNNY C. BURRIS MICHAEL A. KENNEDY TEDDYE PETRO WILLIAM J. DESMOND THOMAS R. KERR JEFFREY H. RAINES KAREN M. DOYLE DAVID A. LANPHEAR JAMES R. SCHOLLES M. JAY EARLEY HOPE M. LEVITT P. DANE SHIELDS RICHARD P. FERENC A. GEORGE MASON ALLEN M. WEINBERG MARK A. GABIS RANDALL S. MAY G. RICHARD WILSON JAMES K. GAYNOR MARIANNE TAYLOR WINSY WALKER Faculty Advisor Secretary Typist The views expressed in the articles appearing in the REVIEW are those of the respective authors, and do not necessarily reflect the opinions of the administration, faculty, or students of Salmon P. Chase College of Law or Northern Kentucky University. Contributing authors are expected to reveal personal, economic, or professional interests or connections which may have influenced the views taken or advocated in their articles. Each author impliedly represents that he or she has made such a disclosure by consenting to publication in this law review. THE EXCLUSIONARY RULE: DOWN AND ALMOST OUT Bernard J. Gilday, Jr.* I. INTRODUCTION For sixty-two years in the federal system and fifteen years in the states, the United States Supreme Court has required the pre-trial and in-trial suppression of evidence where such was searched for and seized in violation of constitutional rights based on the fourth, and fifth' amendments. This suppression is grounded on the princi- ples that the government must play a fair game according to the rules, free of "cheap shots." Not even the government can sit at the table of justice with unclean hands, nor can the courts be accompl- ices in the willful disobedience of the Constitution they are sworn to uphold.' The mandate, called the Exclusionary Rule, has pro- voked more controversy than any other constitutional interpreta- tion. Since the exclusion of wrongfully seized, but otherwise credible and trustworthy physical evidence, frequently enables one factually guilty to escape conviction and penalty, courts at all levels have been aggravated, prosecutors incensed and frustrated, and members of law enforcement allegedly so handcuffed that, for at least some, perjury has become a way of life. In addition, aspiring law-and-order politicians and news commentators who castigated-the "softhearted and softheaded" judiciary for enforcing the Exclusionary Rule have found themselves in new positions of popularity and power. Indeed, constitutional mandates are subject to change. The pres- * A.B., Xavier University; J.D., University of Cincinnati; Mr. Gilday is a member of the firm of Gilday, Jung, & Gilday, Cincinnati, Ohio. 1. U.S. CONST. amend. IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particu- larly describing the place to be searched, and the persons or things to be seized. 2. U.S. CONST. amend. V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 3. Olmstead v. United States, 277 U.S. 438 (1928) (Butler, J., dissenting). NORTHERN KENTUCKY LAW REVIEW [Vol. 4/1 sure brought by critics, the ill-advised, and the opportunists suc- ceeded in causing Richard Nixon to bring to the Supreme Court what he has described as the "strict constructionist," thereby caus- ing a radical shift in the Court's approach to and perception of the Exclusionary Rule's constitutional status. Over a four year period, there has been a chipping away and casting aside of the considera- tions which support the principle of rejecting physical and testimo- nial evidence, unlawfully obtained or seized, and today we are but a few shovels away from burying the Exclusionary Rule. Substitutes have been proposed and offered which Chief Justice Burger has described as "reasonable and effective,"' but these are all "Ivory Tower" theories of the campus and are completely ineffective in practice. II. THE BIRTH, DEVELOPMENT, AND DEMISE OF THE EXCLUSIONARY RULE Three distinct theories spawned and nurtured the Exclusionary Rule. The first, known as "The Personal Right Theory," was an- nounced in Weeks v. United States,5 the 1914 decision of Justice William R. Day. Grounded solely on the fourth amendment, the Weeks Court found that the rule of exclusion vindicated the victim's right of privacy and prevented a further invasion of his constitu- tional rights. This emphasis on the personal and individual rights of the accused was short lived. Thereafter the Court found that there was a close interlocking of the fourth and fifth amendments, and it adopted the 1886 reasoning of Boyd v. United States,' that 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which. .. is condemned in the Fifth Amendment; ...the Fifth Amendment, [therefore] throws light on the question as to what is an 'unreasonable search and sei- zure' . ... In 1928, in Olmstead v. United States,' we found the Court's majority and Justice Brandeis' famous dissent basing the Exclu- 4. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 421 (1971) (Burger, C.J., dissenting). 5. 232 U.S. 383 (1914). 6. 116 U.S. 616 (1886). 7. Id. at 633. 8. 277 U.S. 438 (1928). 19771 EXCLUSIONARY RULE sionary Rule on two entirely different and distinct principles. The majority maintained that, by excluding evidence illegally obtained, the judiciary declined to legitimize the unconstitutional conduct. Thus was born the Judicial Integrity Theory. Brandeis penned the words which ultimately produced the only surviving reason for the Rule, as he wrote: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. *To declare that in the administration of the crim- inal law the end justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.' Justice Holmes agreed and said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part."' 10 Because of and through Brandeis and Holmes, the Court came to see that in pursuing the Judicial Integrity Theory, it was doing nothing more and nothing less than ostensibly preserving the judici- ary's constitutional "virginity." Actually, the Court was totally con- cerned with its own image for more than thirty-five years. It was not until 1949 when Wolf v. Colorado" was announced that the true basis for the Exclusionary Rule was born. What we know today as the Deterrence Theory sprang from Wolf, and, simply stated, it holds that evidence shall be excluded to deter police from violating constitutional privileges. 2 The rationale assumes that the potential exclusion of items seized will discourage the police from employing unconstitutional methods to obtain evidence. The short-run objec- tive is the deterrence of police misconduct; the long-run goal is an educational effect resulting in fewer fourth amendment violations. Indeed, reliable evidence is suppressed; the accused benefits; and 9. Id. at 485 (Brandeis, J., dissenting). 10. Id. at 470. 11. 338 U.S. 25 (1949). A majority of the Supreme Court, in an opinion by Justice Frank- furter, held that in a state court the fourteenth amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.
Load more

Recommended publications
  • Sociology of Law in a Digital Society - a Tweet from Global Bukowina
    Sociology of Law in a Digital Society - A Tweet from Global Bukowina Larsson, Stefan Published in: Societas/Communitas 2013 Link to publication Citation for published version (APA): Larsson, S. (2013). Sociology of Law in a Digital Society - A Tweet from Global Bukowina. Societas/Communitas, 15(1), 281-295. Total number of authors: 1 General rights Unless other specific re-use rights are stated the following general rights apply: Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Read more about Creative commons licenses: https://creativecommons.org/licenses/ Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. LUND UNIVERSITY PO Box 117 221 00 Lund +46 46-222 00 00 Sociology of Law in a Digital Society. A Tweet from Global Bukowina Articles RCSL Podgóreckis Prize 2012 STEFAN LARSSON Sociology of Law in a Digital Society. A Tweet from Global Bukowina Is it possible to determine the Facebook Gemeinschaft or the living law of the global file-sharing community? What are the social facts of twitter or the intui- tive law of Chinese microbloggers? This paper argues that digitisation of society, the reliance on digital networks, protocol, algorithms and completely new sets of organisational structures for social communities, have vast implications for core interests within socio-legal research.
    [Show full text]
  • Title Mores As Living
    Mores as Living Law:-Sociology of Law and Title Economic Anthropology- Author(s) 加藤,哲実 Citation MEIJI LAW JOURNAL, 4: 95-111 URL http://hdl.handle.net/10291/9386 Rights Issue Date 1997-03 Text version publisher Type Departmental Bulletin Paper DOI https://m-repo.lib.meiji.ac.jp/ Meiji University Mores as Living Law： Sociology of Law and Economic Anthropology＊ Tetsumi Kato 1 ● What is the Sociology of Law？ （1）The prinnary meaning of the‘economy’and sociology of law In the sociology of law， we study the legal phenomena and interaction of written laws and so‘ciety by any methodology available to us． The sociology of law is different from the interpretation of law where we intend to make clear the meaning of the Iaws． The sociology of law， as a fundamental jurisdiction， is independent of practical jurisprudence just as fundamental medicine is independent of clinical medicine． The primary meaning of‘economy’（Gk oikonomiα）is the order of nature which integrates many social elements into one body． In economic anthro・ pology， we study the order of nature theoretically， and how that order works in’ nUr SOCietieS． ‘ Ibelieve that the origin of norms of behaviour， as the prirhary form of law， conforms exactly to the above－mentioned definition of the‘economy’． Norms of behaviour which govern man’s actual behaviour appear from the collective mentality of members of a society． Therefore there is something in comrnon between the principles of economid anthropology and the prin－ ciples of the sociology of’law． （2）E．Ehrlich’s‘living law’（lebendes Recん孟）
    [Show full text]
  • Beyond the Law of the Nation-State
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by LUISSearch Beyond the Law of the Nation-State: An Inquiry into the Theory of Legal Pluralism and Societal Law By Mustafa Yaylali Mustafa Yaylali PhD Candidate in Political Theory LUISS Guido Carli Promotor: Prof. Dr. Sebastiano Maffetone 1 Acknowledgements I want to thank my mother Emine Öztas (+15-01-1948) for all her support financially and mentally. And I also want to thank my sister Mesusde Demirkiran and her family for supporting me financially and emotionally through this challenging period 2 Contents Contents Introduction Chapter 1 The Concept of Legal Pluralism 1.1 Introduction 1.1.1 Law and Legal Pluralism 1.1.2 Problem Statement 1.1.3 Outline 1.1.4 Background 1.2 Legal Pluralism and the “The Malinowski Problem” 1.2.1 The Concept of Legal Pluralism 1.2.1 Non-Essentialist Version of Law- definition of Law 1.2.2 Legal pluralism: A Brief History 1.2.3 John Griffiths and Brian Tamanaha:’ The Malinowski Problem’ and the Analytical Dispute on Legal Pluralism 1.2.4 Non-Essentialist Version of Law- definition of Law 1.3 Law in Manacle of Logic 1.4 Legal Pluralism and Institutional -Organizational Framework 1.5 Eugen Ehrlich’s “Living Law” 1.6 Conclusion Chapter 2 “Community and Law” 2.1 Introduction 2.2 Concept of Community 2.2.1 Tönnies Typology Between Gemeinschaft and Gesellschaft 2.2.2 Gemeinschaft and Gesellschaft 2.3 Trust and values 2.3.1 Trust versus Logic 2.3.2.
    [Show full text]
  • CSABA VARGA Transition? to Rule of Law? Varga Jogallami Angol Proba Tartalek Ks Korr01.Qxp 2008.01.23
    PoLíSz series CSABA VARGA Transition? To rule of law? varga_jogallami_angol_proba_tartalek_ks_korr01.qxp 2008.01.23. 12:28 Page 1 CSABA VARGA TRANSITION? TO RULE OF LAW? Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe varga_jogallami_angol_proba_tartalek_ks_korr01.qxp 2008.01.23. 12:28 Page 2 CSABA VARGA was born in Pécs. Since graduation in law in 1965, he has been an academic researcher at the Institute for Legal Studies of the Hungarian Academy of Sciences, since 1991 as scientific adviser. He became a Professor of Law at the metropolitan Eötvös Loránd University in the same year. By the foundation of the Faculty of Law of the Pázmány Péter Catholic University of Hungary in 1995, he founded and has also been heading its Institute for Legal Philosophy, granted by the National Accreditation Committee in 2006 the sole title “Place of Excellence” for a chair in the country. One of the founders (as its secretary between 1976–2006 and since then as its chairman) of the Hungarian National Section of the International Association for Philosophy of Law and Social Philosophy (IVR); a political adviser to and a member of the Advisory Board of the first free-elected Prime Minister of Hungary (1991–1994), serving as an editorial board member of Current Legal Theory (1983–1998), Ratio Juris (1988–), Legal Theory (1993–1999), as well as of Világosság [a philosophical forum] (2003–). In 2004, he was elected as an associated member of the International Academy of Comparative Law. His bibliography is available in both http://varga.jak.ppke.hu and Theatrvm legale mvndi Symbola Cs.
    [Show full text]
  • Abstract This Paper Examines the Different Meanings of Ehrlich's Idea
    Published as 'Eugen Ehrlich, Living Law, and Plural Legalities' ,in Theoretical Inquiries in Law : 9.2 2008, (leading on- line journal )-article 6 6,http://www.bepress.com/til/default/vol9/iss2/art6 978-1841135960 Abstract This paper examines the different meanings of Ehrlich's idea of living law in relation to current debates about legal pluralism. It distinguishes three aspects of Ehrlich's concept as these have been elaborated in the later literature: 'law beyond the law', 'law without the state', and 'order without law'. This retrospective shows that Ehrlich was not principally concerned with defending the rights of ethnic or autonomous communities as such. In taking his work further it is important to recognise how far official and unofficial law are even more interdependent than in his day. But we may still find his work of relevance for thinking about the normative challenges of plural legalities. Eugen Ehrlich, Living Law, and Plural Legalities 1 David Nelken The theme of this special issue is the need to recognise the overlap between three current socio- legal developments: legal pluralism- or the 1 This paper develops out of a much longer study of the influence of Eugen Ehrlich on later writers which will be published in MARC HERTOGH ed., REDISCOVERING EHRLICH, Hart, Oxford (forthcoming). granting of recognition to different forms and forums of dispute- resolution, the privatisation of law - or the move towards the decentralisation of law making, and multiculturalism- the delegation of authority to sub - state communities. It is suggested that 'the thinking taking place in each of the three spheres calls for close ties to the work conducted in the other two'.The work of Eugen Ehrlich, the founder of the sociology of law, might be thought to be particularly relevant to these interconnecting themes.
    [Show full text]
  • Ehrlich's Living Law Revisited--Further Vindication for a Prophet Without Honor James F
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Case Western Reserve University School of Law Case Western Reserve Law Review Volume 18 | Issue 1 1966 Ehrlich's Living Law Revisited--Further Vindication for a Prophet without Honor James F. O'Day Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation James F. O'Day, Ehrlich's Living Law Revisited--Further Vindication for a Prophet without Honor, 18 W. Res. L. Rev. 210 (1966) Available at: https://scholarlycommons.law.case.edu/caselrev/vol18/iss1/12 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. [VoL 18: 210 Ehrlich's Living Law Revisited- Further Vindication for a Prophet Without Honor* James F. O'Day In Fundamental Principles of the Sociology of Law, a major work of the late German legal sociologist, Eugen Ehrlich, the doctrine of the "living law" was introduced. Ehrlich predicted that this doctrine would be applied by modern jurists and administrators alike. Mr. O'Day be- gins by succinctly reviewing the life and theories of Ehrlich and answers many of the sociologist's critics. The author then demonstrates how the "living law" has been illuminated by modern jurisprudence, discussing a typical example - The School Segregation Cases. He concludes by commending the Supreme Court's implementation of Ehrlich's theories.
    [Show full text]
  • Reconstructing Constitutional Punishment Paulo Barrozo
    Washington University Jurisprudence Review Volume 6 | Issue 2 2014 Reconstructing Constitutional Punishment Paulo Barrozo Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Ethics and Political Philosophy Commons, Fourteenth Amendment Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, Other Philosophy Commons, and the Rule of Law Commons Recommended Citation Paulo Barrozo, Reconstructing Constitutional Punishment, 6 Wash. U. Jur. Rev. 175 (2014). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol6/iss2/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. Washington University Jurisprudence Review VOLUME 6 NUMBER 2 2014 RECONSTRUCTING CONSTITUTIONAL PUNISHMENT PAULO BARROZO ABSTRACT Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches
    [Show full text]
  • Eugen Ehrlich's ›Living Law‹ and the Use of Civil Justice in The
    ADMINISTORY ZEITSCHRIFT FÜR VERWALTUNGSGESCHICHTE BAND 5, 2020 SEITE 235–248 D O I : 10.2478/ADHI-2020-0015 Litigious Bukovina: Eugen Ehrlich’s ›Living Law‹ and the Use of Civil Justice in the Late Habsburg Monarchy WALTER FUCHS Ehrlich’s Living Law as a Concept of Multi-normativity of the traditional direction would undoubtedly claim The Austrian jurist Eugen Ehrlich (1862–1922) is that all these peoples have only one, and exactly considered not only one of the founders of the sociology the same, Austrian law, which is valid throughout of law but also a pioneer of legal pluralism. As a matter Austria. And yet even a cursory glance could convince of fact, he conceptually and empirically analysed him that each of these tribes observes quite different the coexistence of different normative orders within legal rules in all legal relations of daily life. […] I have one and the same society. Ehrlich was born the son decided to survey the living law of the nine tribes of of a Jewish lawyer in Czernowitz,1 then capital of the the Bukovina in my seminar for living law. 5 Bukovina, a crown land of the Habsburg Empire at its eastern periphery, where he later worked as professor Ehrlich coined the term living law for these »quite of Roman law.2 Like the Austro-Hungarian Monarchy different« norms that are actually relevant to everyday itself – against whose dissolution Ehrlich passionately action. As he theoretically outlined in his monograph argued for pacifist reasons at the end of the First World »Fundamental Principles of the Sociology of Law«,
    [Show full text]
  • HISTORIA Y DERECHO 200 Años De República Visto Desde El Altiplano Del Sur Peruano
    HISTORIA Y DERECHO 200 AÑOS DE REPÚBLICA VISTO DESDE EL ALTIPLANO DEL SUR PERUANO COORDINADORES: Dr. Walter Gálvez Condori Dr. Boris Espezúa Salmón COMITÉ EDITORIAL: Dr. Luis Ángel Maquera Morales Dr. Michael Espinoza Coila Dr. Galimberty Rossinaldo Ponce Flores Dr. Juan Lupo Jara WALTER GÁLVEZ CONDORI BORIS ESPEZÚA SALMÓN (COORDINADORES) HISTORIA Y DERECHO 200 AÑOS DE REPÚBLICA VISTO DESDE EL ALTIPLANO DEL SUR PERUANO TOMO II HISTORIA Y DERECHO 200 Años de república visto desde el altiplano del sur peruano - TOMO II © WALTER GÁLVEZ CONDORI / BORIS ESPEZÚA SALMÓN (COORDINADORES) © ZELA GRUPO EDITORIAL E.I.R.L. Jr. Independencia N° 506, Puno - Perú Teléfonos: 973215878 RUC: 20601832926 e-mail: zelagrupoeditorial@gmail.com Edición conmemorativa editado por la Corte Superior de Justicia de Puno y la Facultad de Ciencias Jurídicas y Políticas de la UNA-Puno. 1ª edición: noviembre 2020 Tiraje: 1000 ejemplares Hecho el Depósito Legal en la Biblioteca Nacional del Perú Nº 2020-07941 ISBN Nº 978-612-5010-11-7 Noviembre 2020 Todos los derechos reservados. Queda rigurosamente prohibida la reproducción, copia o transmisión, ya sea parcial o total de esta obra, por cualquier medio o procedimiento, incluidos la reprografía y el tratamiento informático, sin la autorización previa y por escrito de los titulares del Copyright. Impreso en Perú / Printed in Peru ÍNDICE Presentación ......................................................................................... 9 PRIMERA SECCIÓN: TEMÁTICA HISTÓRICO-JURÍDICO Breve historia de la Facultad de Ciencias Jurídicas y Políticas de la Universidad Nacional del Altiplano de Puno, camino al bicen- tenario de su creación Boris Gilmar Espezúa Salmón Michael Espinoza Coila ......................................................................... 13 Historia del Ministerio Publico en la región Puno Judith Mercedes Contreras Vargas .........................................................
    [Show full text]
  • Jurisprudence.Pdf
    Ethiopian Justice and Legal Research Institute Teaching Material On JURISPRUDENCE PREPARED BY Daniel W/Gebriel Hassen Mohamed 2008 Table of Contents Table of Contents ..................................................................... i Acknowledgments ................................................................... 1 COURSE INTRODUCTION ........................................................ 2 COURSE OBJECTIVES .............................................................. 3 PART ONE ................................................................................ 4 UNIT ONE ................................................................................ 5 GENERAL CONSIDERATIONS .................................................. 5 Introduction ................................................................................................................ 5 Objectives .................................................................................................................. 5 1.1. What is Jurisprudence ........................................................................................... 5 1.2. Why we study Jurisprudence ........................................................................... 6 1.3. Schools of Jurisprudence ................................................................................. 7 UNIT TWO ............................................................................... 9 CLASSICAL NATURAL LAW THEORY ....................................... 9 Introduction ...............................................................................................................
    [Show full text]
  • Sociological Jurisprudence
    Encyclopedia of Law & Society: American and Global Perspectives Sociological Jurisprudence Contributors: Reza Banakar Editors: David S. Clark Book Title: Encyclopedia of Law & Society: American and Global Perspectives Chapter Title: "Sociological Jurisprudence" Pub. Date: 2007 Access Date: December 08, 2014 Publishing Company: Sage Publications, Inc. City: Thousand Oaks Print ISBN: 9780761923879 Online ISBN: 9781412952637 DOI: http://dx.doi.org/10.4135/9781412952637.n642 Print pages: 1410-1411 ©2007 SAGE Publications, Inc. All Rights Reserved. This PDF has been generated from SAGE knowledge. Please note that the pagination of the online version will vary from the pagination of the print book. SAGE ©2007 SAGE Publications, Inc. All Rights Reserved. SAGE knowledge http://dx.doi.org/10.4135/9781412952637.n642 Sociological jurisprudence is often associated with Roscoe Pound (1870–1964) and through him with the American legal realist movement. However, there are historical and theoretical reasons for including several European scholars, such as the Polish- Russian jurist Leon Petrazycki (1867–1931) and the Austrian jurist Eugen Ehrlich (1862–1922), under this rubric. These scholars were critical of analytical jurisprudence for its conceptual formalism and neglect of empirical facts such as the role of social forces in creating the legal order and shaping legal behavior. They also argued that legal research, legal education, and judicial decision making should adopt the methods and insights of social sciences to counterbalance this shortcoming. The founders of sociological jurisprudence distinguished themselves from mainstream sociologists, such as Émile Durkheim (1858–1917) and Max Weber (1864–1920), who were also interested in law, on one important point. While mainstream sociologists used law to study social developments and issues arising out of the rise of modernity, Petrazycki, Ehrlich, and Pound, and a generation later, Georges Gurvitch (1894–1965), employed social science to transform legal education and practice and to devise a scientific concept of law.
    [Show full text]
  • Commercial Arbitration in Japan: Contributions to the Debate on “Japanese Non-Litigiousness”
    \\server05\productn\N\NYI\40-1\NYI102.txt unknown Seq: 1 19-DEC-07 12:41 COMMERCIAL ARBITRATION IN JAPAN: CONTRIBUTIONS TO THE DEBATE ON “JAPANESE NON-LITIGIOUSNESS” TONY COLE* I. INTRODUCTION .................................. 30 R II. INTRODUCTION TO THE ACADEMIC DEBATE ....... 34 R III. COMMERCIAL ARBITRATION IN JAPAN IN THE TWENTIETH CENTURY ............................ 39 R IV. DISPUTE RESOLUTION PROCESSES IN JAPAN ........ 50 R A. Dispute Resolution and the Japanese “Mind” .... 51 R B. Edo-Era Dispute Settlement Processes ............ 53 R C. Non-Confrontational Dispute Resolution Processes in the Twentieth Century ...................... 59 R V. A PROPOSED SOCIAL-CULTURAL EXPLANATION .... 63 R A. The Thought of Eugen Ehrlich ................. 63 R B. The Thought of Takeyoshi Kawashima ......... 71 R C. Outline of a Social-Cultural Theory ............ 79 R 1. The Historical Disjunction Between Japanese Law and Society.......................... 79 R 2. Japanese Social Rules Against Confrontational Dispute Resolution ......... 80 R VI. THE EMPIRICAL EVIDENCE ........................ 86 R A. Criticisms of the “Culturalist” Argument ........ 86 R B. The Social-Cultural Theory and Japan’s Low Arbitration Rate .............................. 97 R VII. THE FUTURE OF ARBITRATION IN JAPAN .......... 103 R A. Japan’s New Arbitration Law .................. 104 R B. The New JCAA Rules ......................... 109 R C. The New Legal Structure of Japanese Arbitration. 111 R VIII. CONCLUSION .................................... 113 R * Assistant Professor, School of Law, University of Warwick. The au- thor would like to give particular thanks to Mark West, both for providing his original introduction to Japanese law and for repeated assistance given since then. The author would also like to thank White & Case LLP, where all work on this article was performed, for its remarkable level of support both in giving time to write the article and in subsidizing the expenses of research.
    [Show full text]