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

Law Commons

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

Series

2006

Jurisprudence

Institution
Keyword
Publication

Articles 91 - 111 of 111

Full-Text Articles in Law

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth Jan 2006

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth

Faculty Scholarship

This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures ...


The Public Trust Doctrine And Natural Law: Emanations With A Penumbra, George P. Smith Ii, Michael W. Sweeney Jan 2006

The Public Trust Doctrine And Natural Law: Emanations With A Penumbra, George P. Smith Ii, Michael W. Sweeney

Scholarly Articles and Other Contributions

In American jurisprudence, the public trust doctrine emerged as a means of protecting certain limited environmental interests, such as coastal waterways and fishing areas, which were preserved for the benefit of the public and distinguished from grants of private ownership. Modern scholars have, however, called for an expansive application of the public trust doctrine - citing, as such, the growing inventory of "changing public needs" in the environmental context, such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and scope of the public trust doctrine in order to determine ...


The Problem Of Authority: Revisiting The Service Conception, Joseph Raz Jan 2006

The Problem Of Authority: Revisiting The Service Conception, Joseph Raz

Faculty Scholarship

The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained ...


Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell Jan 2006

Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell

Faculty Scholarship at Penn Law

No abstract provided.


Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler Jan 2006

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship at Penn Law

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also ...


The View From The Trenches: Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman Jan 2006

The View From The Trenches: Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur D. Hellman

Articles

In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants' comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed ...


The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus Jan 2006

The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is to take the measure of Justice Scalia's ability to produce significant opinions for the Court, rather than just for himself, by focusing on the Court's property rights cases during the past several decades. Much of the analysis will rely on the Blackmun Papers, because they provide a virtual treasure trove of information revealing the Court's deliberative process while Blackmun was on the Court from 1971 to 1994. Almost all of this information, including Justice Blackmun's handwritten notes on what each Justice said at the Court's private deliberations and initial ...


Public Legal Reason, Lawrence B. Solum Jan 2006

Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines.

The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative ...


The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum Jan 2006

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by briefly ...


Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort Jan 2006

Someplace Between Philosophy And Economics: Legitimacy And Good Corporate Lawyering, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This essay deals with the demands of responsible lawyering when one's client is a corporate or other business entity. I suspect that to most business clients, many of the laws they encounter are mundane and, worse, suspicious in their origins. We would be naive to think that laws always do more good than harm, or even that they are intended to do so. Too often, law in economic and commercial settings is the product of special interest haggling, political grandstanding, or bureaucratic sloth. In its totality, the bulk of commercial and regulatory law probably is mediocre at best. If ...


Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet Jan 2006

Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role ...


The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet Jan 2006

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and what its sponsors ...


Desperately Seeking A Moralist, Robin West Jan 2006

Desperately Seeking A Moralist, Robin West

Georgetown Law Faculty Publications and Other Works

In a recent issue of “Unbound”, Janet Halley reviews my book “Caring for Justice”, criticizing it for exhibiting a broad range of the problems she sees in all forms of "identitarian" legal writing, and therefore worthy of detailed critique. Halley begins her review by listing the representative missteps she finds in both my book and in identitarian politics generally, including, although certainly not limited to, an identification of the site of the subordinated group's injuries-for women, reproduction and sexuality with the site of its ethical lives and insights; a tendency to differentiate and present the interests of subordinate and ...


Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West Jan 2006

Constitutional Culture Or Ordinary Politics: A Reply To Reva Siegel, Robin West

Georgetown Law Faculty Publications and Other Works

Reva Siegel's lecture, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA,’ explores the interaction between the courts and social movements in creating constitutional meaning. In the primary part of this response I focus my comments on Siegel's three major contributions: First, the historical explanation of the source of the Court's authority in the development of the so-called de facto ERA; second, the articulation of a general, jurisprudential thesis regarding social contestation as a source of constitutional authority apart from text, history, and principle; and third, the quasi-sociological descriptive account of ...


Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor Jan 2006

Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School opened its doors on September 28, 1905, a school with ten students and six faculty members. That day marked a great beginning, and on September 28, 2005, we began a year-long celebration of Fordham Law's history and the law school community's remarkable achievements over 100 years. The heart of any great academic institution is, of course, academics, and, as part of the centennial celebration, we are hosting an extraordinary series of conferences. This issue of the Fordham Law Review presents the papers produced by the first of the year's conferences, the Symposium on the ...


The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel Jan 2006

The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel

Faculty Scholarship

Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes ...


Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis Jan 2006

Moral Ambition: The Sermons Of Harry A. Blackmun, Dena S. Davis

Law Faculty Articles and Essays

Justice Harry A. Blackmun died on March 4, 1999 at the age of 90. The public funeral was held on March 9, at the huge and impressive Metropolitan Memorial United Methodist Church, on Nebraska Avenue in Washington, D.C. Among the many speakers at this "Service of Death and Resurrection" was the Rev. Dr. William A. Holmes, senior pastor at the Church, speaking on "The Churchmanship of Harry Blackmun." Dr. Holmes talked movingly of a man who was intimately involved in the affairs of his church. Among the Justice's many contributions, Holmes noted a sermon that Blackmun had once ...


A Chilling Of Discourse, David R. Barnhizer Jan 2006

A Chilling Of Discourse, David R. Barnhizer

Law Faculty Articles and Essays

I argue that the key consequence of the collectives of multicultural, postmodernists, radical feminists, critical race activists, sexuality advocates and others working for radical change is not only the politicization of knowledge in what is after all a realm of politics we call law, but the incoherence of knowledge and the loss of the quality and integrity of our pursuit of knowledge through scholarship. One result is that much of the scholarship and teaching found in the humane and political or noncumulative disciplines such as law are forms of self-interested propaganda in which honesty is muted or excluded and truth-seeking ...


Natural Justice, Lawrence B. Solum Jan 2006

Natural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in ...


Pluralism And Public Legal Reason, Lawrence B. Solum Jan 2006

Pluralism And Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for ...


Unwrapping Racial Harassment Law, Pat K. Chew Jan 2006

Unwrapping Racial Harassment Law, Pat K. Chew

Articles

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants ...