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Full-Text Articles in Law

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 ...


Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho Jan 2018

Internationalizing And Historicizing Hart’S Theory Of Law, Norman P. Ho

Washington University Jurisprudence Review

In The Concept of Law – which continues to enjoy the central position in the field of analytical jurisprudence five decades after its initial publication – H.L.A. Hart makes two powerful claims. He argues that his theory of law is universal (in that it can apply to any legal culture) and timeless (in that it can apply to different times in history). Despite the sweeping, bold nature of these claims, neither Hart nor the large body of scholarship that has responded to, criticized, and refined Hart’s model of law over the past few decades has really tested whether Hart ...


Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham Jan 2018

Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham

Washington University Jurisprudence Review

This essay mounts an immanent critique of Dworkin’s defense of judicial review. Taking Dworkin’s methodology of constructive interpretation as my starting point, I argue that when analyzing the role that political institutions play in democracy, Dworkin fails to take his own method far enough. In particular, he limits his constructive interpretation of democracy to the practice of voting, overlooking the distinctive democratic values implicit within the institutions and practices of legislation by representative assembly. Ironically, given his well-known critique of majoritarian democracy, this failure leads Dworkin to adopt majoritarianism as a starting point when assessing particular institutions. A ...


High Priorities: Land Use, Marijuana, And Meta-Values, Spenser Owens Jan 2018

High Priorities: Land Use, Marijuana, And Meta-Values, Spenser Owens

Washington University Jurisprudence Review

This Note will examine the motivations surrounding the adoption of zoning ordinances pertaining to the production and sale of marijuana through the lens of John Dewey’s theory of valuation. Applying Dewey’s theory to the zoning ordinances of a sampling of state and local governments, I will argue first that the choice of land uses to be regulated and restricted through local zoning ordinances is ultimately referable to values held by the community in which the ordinances are enacted. Second, I will argue that the decisions made on the state level carry more “value” as defined by Dewey’s ...


Freedom And Affordances Of The Net, Christoph B. Graber Jan 2018

Freedom And Affordances Of The Net, Christoph B. Graber

Washington University Jurisprudence Review

This Article is about the relationship between technology and society in fundamental rights theory. So far, the discussion about law and technology has generally been one-directional within the most relevant branches of the social sciences; scholars of the law have been treating technology as a black box when conducting their analyses or developing their theories. In turn, science and technology studies have considered law and regulation as a closed book, which is unsatisfactory as well. Reductionist and compartmentalized theorizing is particularly problematic when it comes to conceiving a fundamental rights theory that is able to cope with challenges of the ...


Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee Jan 2017

Do Criminal Background Checks In Hiring Punish?, Michael A. C. Lee

Washington University Jurisprudence Review

Criminal background checks in the hiring process make it more difficult for former offenders to obtain employment at their market skill level. As a result, many former offenders end up underemployed or unemployed altogether. This obstacle to finding gainful employment is a harm, and this harm directly follows from a former offender’s criminal conviction. The harm can therefore be thought of as part of the punishment imposed on criminal offenders. However, unlike the formal punishment that a criminal offender receives through his sentence, the harm that follows the offender as he seeks employment after he has completed his formal ...


Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw Jan 2017

Are We Adopting The Orphans, Or Creating Them? Medical Ethics And Legal Jurisprudential Guidance For Proposed Changes To The Orphan Drug Act, Lydia Raw

Washington University Jurisprudence Review

This Note traces the subtle changes in the underlying purposes of the Orphan Drug Act, and evaluates those purposes from the perspectives of medical ethics and legal jurisprudence. Part I begins with the history of the Orphan Drug Act discussed issue by issue, to elucidate the subtle changes in the purpose of the Orphan Drug Act through its history. Part II explores the moral and ethical issues presented by the Orphan Drug Act to identify eleven guiding principles from medical ethics and legal jurisprudence. Lastly, Part III applies these guiding principles to the most common proposed amendments to the Orphan ...


Justice Antonin Scalia’S Flawed Originalist Justification For Brown V. Board Of Education, Ronald Turner Jan 2017

Justice Antonin Scalia’S Flawed Originalist Justification For Brown V. Board Of Education, Ronald Turner

Washington University Jurisprudence Review

This article examines Justice Antonin Scalia and Bryan Garner’s originalist justification of Brown v. Board of Education in Reading Law, concluding that their analysis is flawed in at least three respects: (1) their interpretation that the texts of the Thirteenth and Fourteenth Amendments prohibited all white-supremacist and separationist laws is atextual, acontextual, and ahistorical; (2) their invocation of Justice Harlan and his Plessy dissent does not support, but actually cuts against their understanding of the original understanding; and (3) relying on a single and critiqued article, with no reference to that criticism, they fail to support their conclusion that ...


Confucian Jurisprudence, Dworkin, And Hard Cases, Norman P. Ho Jan 2017

Confucian Jurisprudence, Dworkin, And Hard Cases, Norman P. Ho

Washington University Jurisprudence Review

This Article argues that Confucian jurisprudence can accurately be analogized to Dworkin’s adjudicative theory of law, in particular, his interpretive theory of law. To more effectively reveal the methods of Confucian jurisprudence and therefore carry out a comparison with Dworkin’s interpretive theory of law, this article adopts Dworkin’s methodology of focusing on “hard cases.” Specifically, this article identifies and then examines an actual hard case (from Tang dynasty China) which is arguably representative of Confucian jurisprudence in action – the controversial case of Xu Yuanqing, who committed a revenge killing against a low-ranking official who had killed his ...


A Just War Inquiry Of Police, Prosecutors And Deadly Force, Ryan Geisser Jan 2017

A Just War Inquiry Of Police, Prosecutors And Deadly Force, Ryan Geisser

Washington University Jurisprudence Review

Law enforcement is authorized to use deadly force under limited circumstances in the United States. Most do not dispute that there are some clear cases when the use of deadly force is warranted. The more controversial issues arise when attempting to articulate limits on when lethal force is justified. While theorists and academics can contemplate how police officers should act in the abstract, law enforcement does not have the same luxury when they are out on patrol and their lives are in constant jeopardy. The present analysis will attempt to create a clear framework for determining when law enforcement are ...


Power, Knowledge, And Relationships Within The Federal Sentencing Guidelines: A Foucauldian Critique, Timothy Noonan Jan 2017

Power, Knowledge, And Relationships Within The Federal Sentencing Guidelines: A Foucauldian Critique, Timothy Noonan

Washington University Jurisprudence Review

No abstract provided.


The Personalization Puzzle, Brittainy Cavender Jan 2017

The Personalization Puzzle, Brittainy Cavender

Washington University Jurisprudence Review

Complex algorithms determine users’ search results and the content of their social media accounts. These algorithms often use machine learning and artificial intelligence, making it impossible to predict their output. Increasingly, these algorithms have been employed to personalize users’ online experiences. Google and Facebook use these algorithms to analyze users’ likes, clicks, search history, location, and other information to determine which articles, websites, and posts to include in search results and newsfeeds. Often users are completely unaware of the algorithms operating beneath the surface, controlling the information they receive. This lack of transparency makes it difficult for users to access ...


The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman Jan 2017

The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman

Washington University Jurisprudence Review

Postmodern jurisprudence was all the rage in the 1990s. Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves—independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article. Then Fish and Schlag turned on each other. Each attacked the other for making the same mistake: harboring a modernist self. I revisit this skirmish for two reasons. First, it helps explain the current moribund state of postmodern jurisprudence. If two of the leading postmodernists could not avoid ...


Law Without Absolutes: Toward A Pragmatic Science Of Law, Jd Hsin Jan 2017

Law Without Absolutes: Toward A Pragmatic Science Of Law, Jd Hsin

Washington University Jurisprudence Review

Although today the very idea of a science of law—the thought that law could be made a science like any other taught and studied at a modern university—has the ring of an oxymoron, this piece argues that the rejection of legal science was not only overhasty but unnecessary. There is a sense in which we can see law as a science, it argues, but only once we come to see more clearly and accurately just why the tradition of legal science begun in the earliest days of the Western legal tradition and brought to America by Christopher Columbus ...


Can Law Be A Source Of Insight For Other Academic Disciplines?, Stephen M. Feldman Jan 2016

Can Law Be A Source Of Insight For Other Academic Disciplines?, Stephen M. Feldman

Washington University Jurisprudence Review

Law has been a borrower but not a supplier. Law schools, in effect, have been located on one-way streets, with ideas flowing in but nothing going out. This essay is intended to begin a dialogue that could change the one-way streets between law schools and other university departments into two-way streets. I want to demonstrate that legal and jurisprudential studies can be a source of ideas for scholars in other fields. In particular, this essay argues that the legal concept of the burden of proof can illuminate disputes between theorists of modernism and postmodernism.


Civil Dissent By Obedience And Disobedience: Exploiting The Gap Between Official Rules And Societal Norms And Expectations, Daniel R. Correa Jan 2016

Civil Dissent By Obedience And Disobedience: Exploiting The Gap Between Official Rules And Societal Norms And Expectations, Daniel R. Correa

Washington University Jurisprudence Review

Civil dissent comes in many forms, from peaceful protest to open violation of official rules. But strict obedience to official rules may also serve as a dissenting act. Professors Jessica Bulman-Pozen and David E. Pozen examine obedience as dissent in their article, Uncivil Obedience. The term “uncivil obedience” is meant to capture what Bulman-Pozen and Pozen consider the paradox expressed by “insolence toward law” through conformity to law. This inversely mirrors the paradox expressed by a civil disobedient’s fidelity to law through violation of law.

Conceptually, ‘uncivil obedience’ is best understood as a form of civil disobedience. An uncivil ...


Corporate Identity And Group Dignity, Konstantin Tretyakov Jan 2016

Corporate Identity And Group Dignity, Konstantin Tretyakov

Washington University Jurisprudence Review

Every time a decision needs to be made about corporate rights, the theoretical difficulties of corporate identity and personhood have to be overcome. In this article, I analyze these problems from the perspectives of moral philosophy and law, examining how the theories of the former inform and influence legal discourse and practices (including the recent cases of Citizens United and Hobby Lobby); my main point there is that the philosophical and legal understandings of personhood are analytically distinct and should not be confused. Based on my findings, I focus upon one particular teaching about corporate identity—the real entity theory ...


Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner Jan 2016

Kant’S Categorical Imperative And Mandatory Minimum Sentencing, Craig Turner

Washington University Jurisprudence Review

Deterrence-based punishment systems are scattered throughout history, and exist in the American legal system today. One such method of deterrence prescribes mandatory punishments for violations of certain crimes, without regarding to underlying circumstances or an assessment of the the individual accused of such crimes. These types of sentencing requirements restrict judicial discretion and are designed to serve as an example for other would-be offenders. While perhaps justifiable under a utilitarian code of ethics, mandatory minimums are morally suspect when assessed through the lens Immanuel Kant’s Categorical Imperative.

The fundamental premise of the second formulation of Kant’s Categorical Imperative ...


Cruel And Unusual What? Toward A Unified Definition Of Punishment, Raff Donelson Jan 2016

Cruel And Unusual What? Toward A Unified Definition Of Punishment, Raff Donelson

Washington University Jurisprudence Review

This Article argues for an expanded understanding of legal punishment for American courts to use. Punishment, on this new view, includes all significant harm caused by state actors’ retributive intent and most significant harm that befalls someone as a result of the state seeking retribution against her. What commends this new definition is not that it tracks lexicographers’ or metaphysicians’ understandings of punishment; rather, this new definition aims to track relevant moral and political considerations. Importantly, the proposed definition results from an attempt to reason from the perspective of someone harmed by state practices, as that perspective has greater moral ...


Criminal Responsibility And Causal Determinism, J. G. Moore Jan 2016

Criminal Responsibility And Causal Determinism, J. G. Moore

Washington University Jurisprudence Review

In analytical jurisprudence, determinism has long been seen as a threat to free will, and free will has been considered necessary for criminal responsibility. Accordingly, Oliver Wendell Holmes held that if an offender were hereditarily or environmentally determined to offend, then her free will would be reduced, and her responsibility for criminal acts would be correspondingly diminished. In this respect, Holmes followed his father, Dr. Holmes, a physician and man of letters. Similar theories, such as neuropsychological theories of determinism, continue to influence views on criminal responsibility, although such theories do not imply that it is physically impossible for accused ...


Is It Fair To Criminalize Possession Of Firearms By Ex-Felons?, Zack Thompson Jan 2016

Is It Fair To Criminalize Possession Of Firearms By Ex-Felons?, Zack Thompson

Washington University Jurisprudence Review

Steven Gomez was being held in the county jail when he learned that he had been acquitted of the charges against him. Upon hearing that Gomez would be released shortly, Imran Mir, a fellow inmate who had been charged with participating in an international drug conspiracy, offered Gomez $10,000 per person to kill the six witnesses who were going to testify against Mir. Gomez reported Mir’s offer to the jail guards. Eventually, the customs agent working on Mir’s case promised anonymity and protection to Gomez in return for his help in gathering evidence against Mir. Gomez then ...


Table Of Contents Jan 2016

Table Of Contents

Washington University Jurisprudence Review

No abstract provided.


Faculty List Jan 2016

Faculty List

Washington University Jurisprudence Review

No abstract provided.


Go To Your Room, Fanduel And Draftkings: Daily Fantasy Sports, New York & Paternalism, James E. Havel Jan 2016

Go To Your Room, Fanduel And Draftkings: Daily Fantasy Sports, New York & Paternalism, James E. Havel

Washington University Jurisprudence Review

On October 4, 2015, Ethan Haskell, an employee of DraftKings, the nation’s second-largest Daily Fantasy Sports (DFS) website, won $350,000 in prize money on FanDuel, the nation’s largest DFS website. At the time, the two companies attracted attention with their seemingly incessant national advertising campaigns that blanketed the internet, television and sports-talk radio, which promised exciting entertainment and prize money resulting from playing daily fantasy leagues without season-long commitment. Haskell’s win was newsworthy, because he had access to pertinent and non-public DraftKings information that could have been used for his gain on FanDuel. This potential insider-trading ...


Mailing Statement Jan 2016

Mailing Statement

Washington University Jurisprudence Review

No abstract provided.