Law Commons^™

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

The Praise Of Silly: Critical Legal Studies And The Roberts Court, James F. Lucarello

Touro Law Review

This Comment demonstrates that the Supreme Court is lying to you in its opinions. Why is it lying? The short answer to this question is quite simple: It is being silly.

There is nothing inherently wrong with being silly. In fact, some praise silliness, as a heightened and healthy understanding of the indeterminate world that incorporates our reality. Silliness, how ever, is only praise-worthy when it is understood and utilized purposefully. The silliness of most of the Justices on the Supreme Court, on the other hand, is a product of self-delusion and fundamentalism, which makes their silliness not silly at …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

Ian C Bartrum

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal …

A Call For Stricter Appellate Review Of Decisions On Forum Non Conveniens, Nicholas A. Fromherz

Nicholas A Fromherz

Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes pertaining to the matter. When a case is dismissed on forum …

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …