Legal Things Research Articles

Nonmedical Prescription Drug Use Among Midwestern Rural Adolescents

ABSTRACTPrescription drug misuse has been an increasing problem in the United States, yet few studies have examined the protective factors that reduce risk of prescription drug abuse among rural adolescents. Using social control theory as a theoretical framework, we test whether parent, school, and community attachment reduce the likelihood of lifetime and 30-day prescription drug misuses among rural youths in Nebraska (N = 18,050). Results indicated that higher levels of parental and school attachment and having fun and legal things to do in the community were significantly associated with reduced odds of using. Implications and limitations are discussed.

Writing Legal History Then and Now: A Brief Reflection

In an influential article written in the mid-1970s, the legal historian Robert Gordon argued that there were two ways of doing legal history, “internal legal history,” on the one hand, and “external legal history,” on the other. Gordon expressed the difference between the two as follows: The internal legal historian stays as much as possible within the box of distinctive-appearing legal things; his sources are legal, and so are the basic matters he wants to describe or explain, such as changes in pleading rules, in the jurisdiction of a court, the texts assigned to beginning law students, or the doctrine of contributory negligence. The external legal historian writes about the interaction between the boxful of legal things and the wider society of which they are a part, in particular to explore the social context of law and its social effects, and he is usually looking for conclusions about those effects.

Fictionalising Jurisprudence: An Introduction to Strong Legal Fictionalism

The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists.

History and Characterization of Law: Just War and Other Legal Things in the Age of Positivism

If what is important in our affairs is that we know the truth, then are there present things about which we must know the past in order to know the truth?I argue there are, and that one category of those things is legal things, the law. By law I mean political theory, justice, right, rights, positive law and ethics; and all of the various ways those things have been understood by jurists. The way we reason about the law radically changed in the Enlightenment. By the end of the 18th century science and positivism as general methods of reason had refracted the unity of law into a scientific part and a prudential part, laws of nature and natural law. The natural law part consisted of various concepts that were then each understood to exist independently of the others: morality, positive law, political theory, justice, ethics, etc. In the aftermath positivism dominated the way law was understood. In positivism law is opposed to morality, a categorical term into which all of the prudential concepts are reduced. The prudential fragments also underwrote the development of the social sciences, and operationalized the development of ideology/critique (e.g., Marx, Nietzsche, Freud, Foucault) and the relativization of political values. Any discussion of a fragment of law must include discussion of the other fragments if the Right or truth of the law is to be understood. Positivism, a fragment, is inherently incomplete as an understanding of the law, and its incompleteness mandates that if truth about the law is sought, then it must be sought in the holistic vision of law. I generalize to argue that any argument about living things that touches, traverses or occurs after the Enlightenment must take into account the changed nature of historical space originating in the Enlightenment. Nothing in post-Enlightenment historical space, especially legal/moral things, can be taken at face value, including positivism and the US Constitution. We must strive to reassemble or revision Right for an age in which positivism is the best tool of ideology, and the dominant ideologies serve oligarchic ends.

Renewing Legal Theory: History and the Unity of Legal Things

This is a comprehensive, speculative, non-naturalist and historicist framework of a theory of law. I address the relationship between nature and law in general; the nature of law; the nature and taxonomy of legal things; the effect of the Enlightenment on legal theory; the relationship between science and law, and between law and history; the poverty and dangers of both positivism and natural law theory; and I address several philosophical issues that are concomitant to an understanding of law in general, including the role of the universal, the centrality of the vision of life; the relationship between life and consciousness (critiquing Nagel’s new book in the process), consciousness and history, and history and law; sacrifice; evil, and the future, among other things. I explicitly place myself in the Aristotelian/Hegelian traditions. As a subtext, I grapple with containing the systematic problem science presents to legal/political order. By laying the groundwork for a renewal of legal theory outside of the constraints of positivism and natural law the framework also lays the groundwork for a reevaluation of the role science should play in the political/legal order, and therefore of science itself. The mechanism for these reevaluations is enabled by the specific grounding of the theory in the findings of neuroscience. Neuroscience teaches one of two irreconcilable things: either man has no free will; or there is a scope of free and real capacity for the mature human to make choices, to exercise free will (within constraints). The first of these two conclusions must be wrong because it contradicts not only experimental findings about man, but it contradicts the experience of every mature human. It is a philosophical conclusion based on Enlightenment metaphysics of science. If man has no free will, there is no basis for political order, for responsibility, etc., an argument we are familiar with but fail to understand and follow to its logical and historical implications, as now I do. I begin my argument with a theory of consciousness and freedom.

The Unity Thesis: How Positivism Distorts Constitutional Arguments

Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, that law cannot be understood apart from the moral. There are fundamental legal things, such as consent, iustum bellum and the state, that have persisted since classical times in our legal regimes. However, the Enlightenment acted to refract those legal things into scientific parts and moral parts. All positivist (or scientific) legal concepts, such as the Enlightenment idea of a constitution, have to be reunited with their moral part(s) in order to be properly understood. The unified legal thing out of which constitutionalism emerged is the state, and it was refracted into the Hobbesian/Lockean individual, social contract theory, inalienable rights, implicit consent, popular sovereignty, slavery, the constitution, limited suffrage, the electoral college, and oligarchic control. The moral part of the US Constitution is democracy and civil rights; the legal part oligarchy. If we merge the various meanings back into the idea of the state (as a legal thing), then we see democracy/rights continue to enable civil discord by unbalanced focus on the Hobbesian individual, and that instead we should focus on the common good. In the course of exploring some other implications of the Unity Thesis, I explain the origin or necessity for the development of ideology/critique. Once things were reduced by science into parts we lost sight of the wholes, but since it is natural to understand things as wholes we compensate. We recognize there is something false (ideology, the mask of the whole), but since wholes have been rendered invisible we explain only what we can see as dialectic, clothing it in disapproval (critique) but prohibited by naturalism from regaining the unity.

Pandectism and the Gaian Classification of Things

Gaius was the first Roman jurist to classify legal things into corporeal and incorporeal. His influential classification did not expressly mention the right of ownership. The German Pandectists justified this absence arguing that the list of tangibles referred to the objects of ownership. Following Pandectism, many modern legal systems acknowledge ownership only with regard to corporeal things. This paper departs from the Pandectists' conclusions. The categorization at issue should be read as part of Gaius's effort to educate his students for the legal profession. Gaius proposed a coherent classification embedded into a clear didactic project. The jurist was not seeking to advance a theory of ownership, but to link the legal actions to their objects.

The Firm as a Legal Entity: What Distinguishes Wholly Owned Subsidiaries from Internal Divisions in Japan?

We argue that the legal boundaries of the firm have more substantial effects on the Japanese multi-business organization than on its U.S. counterpart. The standard economic, management, or legal view is that distinguishing between an in-house division and a subsidiary, in particular, a wholly owned subsidiary, does not make sense: Although it is the subsidiary who owns its assets, and the parent firm only owns the subsidiary as a legal thing, the parent firm, as the dominant shareholder, can hire or fire the subsidiary's managers at will, or even dissolve the subsidiary and sell off all the assets. However, subsidiary companies appear to have very different roles in the U.S. and Japan. Although the traditional approach to diversification in the U.S. is to organize businesses as divisions, most large Japanese firms maintain a network of affiliated firms many of which are subsidiaries, and the core firms actively separate activities from the main body, in part for the purpose of diversifying and developing new businesses. What then distinguishes a subsidiary from an in-house division? We argue that separating a business as a subsidiary has an economic impact on the firm that attempts to make a commitment in delegation of authority to some of the divisions but fails because of the 'multilateral' nature of relationships between the head office of the firm and the in-house divisions. Although the ultimate control right resides with the head office of the firm, it may attain delegation of authority by making a credible promise to rubber-stamp the decisions made by the divisions in repeated relationships. Whether this 'informal delegation' is sustained as an equilibrium depends on the strategies of the relevant parties. We argue that in the stylized Japanese firm, the managers identify themselves with the firm rather than the divisions they belong to, and hence everyone expects that deviation from informal delegation at a specific division will be met with punishment from all the divisions. If such a multilateral arrangement is well established and prevails in the Japanese firm, it faces difficulties in differentiating its internal units: either informal delegation granted to all the units or delegation to neither unit is sustainable as an equilibrium. This inflexibility makes room for a role of legal boundaries. Even if separating a unit as a subsidiary only changes its 'label', it enables the Japanese firm which cannot sustain partial informal delegation to distinguish among the businesses and attain informal delegation to those outside the boundaries while maintaining centralization internally.

Commercial Law and the Theory of Management-Based Commercial Law

Legal practitioners often write about legal things that are useful for their clients or employers, i.e., firms. However, they apply no theory of commercial law. Law professors tend to apply theories, but they have been unable to design a theory of commercial law. As a result, their work is less useful for firms than it could be, and legal science has failed to serve the information needs of firms properly. This article gives an overview of present research approaches in commercial law and discusses the reasons for the absence of a general theory of commercial law. The main purpose of this article is to increase the usefulness of commercial law research for firms by proposing a theory of management-based commercial law (MBCL). MBCL tries to explain the legal practices of firms as rational users of law. According to MBCL, firms share the same generic legal objectives and use the same generic legal tools and practices to reach them. One can also identify particular branches of management-based commercial law on the basis of the commercial context of firms. As such legal objectives and commercial contexts are determined functionally, the management-based research method is related to the functional method used in comparative law.

The Color Fault Lines: Asian American Justice from 2000

This symposium aims to connect those of here scholars, lawyers, community workers and law students. It also aims to link us with our Asian American communities, and then beyond, with African Americans, Native Americans and Hawaiians, Latinas/os and white Americans of good will, and then beyond that, with all people struggling against forms of social discrimination. In doing so, the symposium specifically aims to further a joint project of envisioning Asian American participation in justice struggles from the Year 2000 on. Let's turn to history to my spring semester, second year at Boalt Hall, when I took a two-credit externship at Dale Minami's new law office in Oakland (Dale had just left the Asian Caucus). Late every Thursday, Dale would sit and talk about political lawyering about the importance of not only knowing the mechanics of in-the-trenches lawyering practice, but also of having a sophisticated theoretical grasp of how law and the courts really operate in a largely white-dominated (but demographically changing), capitalist society. He was skeptical and hopeful, harsh and uplifting and always critically strategic. He would tell me, start now, do; but also always read and think. So I did small legal things in the Asian American community and with APALSA. I studied Marxist Theory of the State and and Ancient Law, and I read Legal Realism, Legal Process, Asian American History, John Rawls and Law Against the People. (I would have taken critical race theory and social justice courses with Professors Harris and Wildman if they had existed.) When I started a complex litigation practice and did community law work, I found the critical take on law and legal process immensely useful. Seeing the system from the outside helped me function on the inside. Several years later, this all came even more vividly to life when Dale and others asked me to join the Fred Korematsu coram nobis legal team to reopen the infamous WWII Japanese American internment case Korematsu