Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence

Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 6904

Full-Text Articles in Law

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman Sep 2917

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman

Florida State University Law Review

In 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is anti-trust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to ...


Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka Feb 2019

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.


Marriage Equality Comes To The Fourth Circuit, Carl Tobias Feb 2019

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Washington and Lee Law Review

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Going "Clear", Ryan D. Doerfler Jan 2019

Going "Clear", Ryan D. Doerfler

Faculty Scholarship at Penn Law

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words ...


Property, Concepts, And Functions, Eric R. Claeys Jan 2019

Property, Concepts, And Functions, Eric R. Claeys

Boston College Law Review

This article makes two suggestions for ongoing debates about property concepts. First, these debates have focused too much on concepts for ownership; they have neglected concepts that cover property rights weaker than rights of ownership but still robust enough to constitute rights in relation to ownable resources. Second, these same debates have neglected the roles that artifact functions might play in property concepts. Property rights are artifacts, and functions play crucial roles in artifacts and the concepts that represent them. The Article confirms both suggestions via a close study of one particular property concept. That concept is prominent in Anglo-American ...


Conceptions Of Sovereignty, Paul Hansen Jan 2019

Conceptions Of Sovereignty, Paul Hansen

Master of Studies in Law Research Papers Repository

This paper explores conceptions of sovereignty held by Canada’s Indigenous and Western cultures. It seeks to determine what sovereignty entails and how the Crown- Indigenous relationship is affected by the judgments of Canada’s courts. The study makes no attempt to compare the relative merits of Indigenous and Western sovereignty conceptions. Similarly, it does not examine nor attempt to reconcile sovereignty-related tensions that may exist between the Crown and Indigenous peoples.

The research is framed by a two-part question: (1) What are the defining characteristics of Indigenous and Western conceptions of sovereignty; and (2) what impact do the sovereignty-related ...


Posner And Class Actions, Daniel M. Klerman Jan 2019

Posner And Class Actions, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

The hallmark of Judge Posner’s class action decisions is rigorous review to ensure that aggregate litigation serves the best interests of class members and does not unduly pressure defendants to settle. Although he championed class actions, especially as a way to provide efficient justice in cases involving numerous small claims, Posner also recognized that, because of the agency problems that pervade class action litigation, ordinary adversary procedures were not sufficient to protect class members. As a result, the judge had to act as a fiduciary for the class, especially when approving settlements and fee awards. In addition, the colossal ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Against Life Without Parole, Judith Lichtenberg Jan 2019

Against Life Without Parole, Judith Lichtenberg

Washington University Jurisprudence Review

We have many good reasons to abolish life without parole sentences (LWOP, known in some countries as whole life sentences) and no good reasons not to. After reviewing the current state of LWOP sentences in the United States, I argue that the only rationale for punishment that can hope to justify them is retributivism. But even if retributivism is a sound principle, it in no way entails life without parole. One reason is that unless one believes, like Kant, that appropriate punishments must be carried out whatever the circumstances, we must acknowledge that other considerations are relevant to determining punishments ...


Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt Jan 2019

Reconciling The Rule Of Law: Rights And Punishment, Benjamin L. Apt

Washington University Jurisprudence Review

There is an intractable paradox in the relation between rights and criminal punishment. Criminal punishment frequently conflicts with rights; people typically have identical rights within a legal system, yet the punished are unable to exercise the rights to the same extent as other people. But criminal punishment, in conjunction with criminal laws, also operates to protect rights. To clarify the tension between rights and punishment, I start by analyzing the content and purpose of rights. Next I discuss the nature of rules and the particular types of rules that make up a typical “systems of rules.” I then argue that ...


A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt Jan 2019

A Clash Of Principles: Personal Jurisdiction And Two-Level Utilitarianism In The Information Age, Wesley M. Bernhardt

Washington University Jurisprudence Review

Utilitarianism provides the best analytic framework for “minimum contacts” analyses in multi-state mass tort litigation. Utilitarianism is a consequentialist ethical philosophy contending that one should act in a way that maximizes utility; that is, act in a way that maximizes pleasure and minimizes pain. This is often referred to as the “felicific calculus.”1 To maintain a civil lawsuit against a defendant, a court must have “personal jurisdiction” over that defendant, meaning that the defendant must have minimum contacts related to the suit such that maintenance of the suit does not offend traditional notions of fair play and substantial justice ...


Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes Jan 2019

Political Speech In The Armed Forces: Shouting Fire In A Crowded Cyberspace, Elliott Hughes

Washington University Jurisprudence Review

A staple of the American version of democracy is civilian control of the military: we are uncomfortable with politicization of the Armed Forces, and military and other federal laws restrict the political expression of servicemembers (“SMs”) in the Armed Forces, whether they are active- duty members or National Guard or Reserves serving on active duty. These restrictions, while well-intentioned to prevent actual or apparent political partisanship or bias within the military, have the undesired effect of deterring SMs from otherwise healthy political expression. With the advent of the internet and proliferation of social media use, questions regarding SM status and ...


Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu Jan 2019

Ethnic Studies As Antisubordination Education: A Critical Race Theory Approach To Employment Discrimination Remedies, Theanne Liu

Washington University Jurisprudence Review

This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (“EEO”), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law. A restrictive view of antidiscrimination law treats discrimination as an individual instead of structural or societal wrong and looks to addressing future acts of discrimination instead of redressing past and present injustices. An expansive view of antidiscrimination law sees its objective as eradicating conditions of racial subordination. Ethnic ...


Transborder Speech, Ronald J. Krotoszynski Jr. Jan 2019

Transborder Speech, Ronald J. Krotoszynski Jr.

Notre Dame Law Review

In an increasingly globalized marketplace of ideas, First Amendment law and theory must recognize that the freedom of speech does not end at the water’s edge. Simply put, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography may serve as a constitutionally acceptable basis for content-based censorship of speech. If, as the Supreme Court argued with such ferocity in Citizens United, the value of speech to an audience does not depend on the speaker’s identity or motive for speaking ...


The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters Jan 2019

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship at Penn Law

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference ...


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Should Robots Prosecute And Defend?, Stephen E. Henderson Dec 2018

Should Robots Prosecute And Defend?, Stephen E. Henderson

Stephen E Henderson

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. Even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision ...


Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman Dec 2018

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman

D. A. Jeremy Telman


This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic.  It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities.  If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options.  The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.
Chisholm, the pre-Marshall Court’s most important constitutional ...


All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman Dec 2018

All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman

D. A. Jeremy Telman


The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers.  There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.”  That is, at least some of these issues still generate live controversies even though they some of them seem to ...


Originalism As Fable, D. A. Jeremy Telman Dec 2018

Originalism As Fable, D. A. Jeremy Telman

D. A. Jeremy Telman


Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism.This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants and his mastery of constitutional doctrine.
This Essay offers two ways in which Segall’s exemplary work ...


Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers Dec 2018

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.


Certainty Vs. Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii Dec 2018

Certainty Vs. Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...


Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon Dec 2018

Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon

Washington Law Review

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of ...


Is The First Amendment Obsolete?, Tim Wu Dec 2018

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on ...


If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello Nov 2018

If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello

Northwestern Journal of Law & Social Policy

No abstract provided.


Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena Nov 2018

Investment Disputes Oltre Lo Stato: On Global Administrative Law, And Fair And Equitable Treatment, Sebastián López Escarcena

Boston College Law Review

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance ...


Principles Of Risk Imposition And The Priority Of Avoiding Harm, Gregory C. Keating Nov 2018

Principles Of Risk Imposition And The Priority Of Avoiding Harm, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The “safe level” standard, for example, requires the elimination of all significant risks. The “feasibility” standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the Environmental Protection and Occupational Health and Safety Agencies. You might expect them to be too well-entrenched to ...


Precedent In A Polarized Era, Zachary S. Price Nov 2018

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional ...