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

Law Commons

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

1992

Jurisprudence

Institution
Keyword
Publication
Publication Type
File Type

Articles 1 - 30 of 79

Full-Text Articles in Law

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White Dec 1992

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

Scholarly Works

In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the ...


Subject: Object, Jeanne L. Schroeder Sep 1992

Subject: Object, Jeanne L. Schroeder

University of Miami Law Review

No abstract provided.


The Argument For Judicial Review—And For The Originalist Approach To Judicial Review (The Ben J. Altheimer Lecture), Michael J. Perry Jul 1992

The Argument For Judicial Review—And For The Originalist Approach To Judicial Review (The Ben J. Altheimer Lecture), Michael J. Perry

University of Arkansas at Little Rock Law Review

No abstract provided.


The Formal Character Of Law, Robert S. Summers Jul 1992

The Formal Character Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.


Federal Judgments Law: Sources Of Authority And Sources Of Rules, Stephen B. Burbank Jun 1992

Federal Judgments Law: Sources Of Authority And Sources Of Rules, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


What Is A Postmodern Constitutionalism?, J. M. Balkin Jun 1992

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would be clear ...


Courts And Cultural Distinctiveness, Marie R. Deveney Jun 1992

Courts And Cultural Distinctiveness, Marie R. Deveney

University of Michigan Journal of Law Reform

The claim that minority ethnic and religious groups are culturally distinct from the dominant society is often, either implicitly or explicitly, a key element of demands these groups make to courts and legislatures for accommodation of their needs. In such cases, the decision maker's understanding of what constitutes "cultural distinctiveness" is crucial, for it can strongly influence the outcome of the accommodation question. In this brief Essay related to Peter Welsh's and Joseph Carens's papers and Dean Suagee's remarks delivered at the Preservation of Minority Cultures Symposium, I contrast these panelists' subtle and sophisticated understandings of ...


A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr Jun 1992

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Michigan Law Review

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article ...


Justice Barkett's Feminist Jurisprudence, Lanae Holbrook May 1992

Justice Barkett's Feminist Jurisprudence, Lanae Holbrook

University of Miami Law Review

No abstract provided.


The Jurisprudential Cab Ride: A Socratic Dialogue, Daniel A. Farber May 1992

The Jurisprudential Cab Ride: A Socratic Dialogue, Daniel A. Farber

BYU Law Review

No abstract provided.


Crime And Punishment In Eighteenth-Century England, William B. Jones Jr. Apr 1992

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.


Judicial Federalism: Current Trends And Long-Term Prospects, Stanley H. Friedelbaum Apr 1992

Judicial Federalism: Current Trends And Long-Term Prospects, Stanley H. Friedelbaum

Florida State University Law Review

No abstract provided.


Crime And Punishment In Eighteenth-Century England, William B. Jones Jr. Apr 1992

Crime And Punishment In Eighteenth-Century England, William B. Jones Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.


Incommensurability As A Jurisprudential Puzzle, Richard Warner Mar 1992

Incommensurability As A Jurisprudential Puzzle, Richard Warner

All Faculty Scholarship

No abstract provided.


Remarks On The Process Of Judging, William H. Rehnquist Mar 1992

Remarks On The Process Of Judging, William H. Rehnquist

Washington and Lee Law Review

No abstract provided.


Improving One's Situation: Some Pragmatic Reflections On The Art Of Judging, Catharine Pierce Wells Mar 1992

Improving One's Situation: Some Pragmatic Reflections On The Art Of Judging, Catharine Pierce Wells

Washington and Lee Law Review

No abstract provided.


Balancing Commerce, History, And Geography: Defining The Navigable Waters Of The United States, John F. Baughman Mar 1992

Balancing Commerce, History, And Geography: Defining The Navigable Waters Of The United States, John F. Baughman

Michigan Law Review

This Note develops a simple set of principles useful for defining navigable waters in a contemporary context. Part I considers why federal admiralty jurisdiction exists, and traces the evolution of the phrase navigable waters as a term of art. Part II analyzes the conflicting contemporary definitions of navigable waters. Part III resolves the conflict by proposing guidelines that address the major concerns of all competing definitions. The system advocated is consistent with the goals of admiralty, constitutionally sound, easy to apply, and focuses attention on the nexus test to resolve the issue of whether particular cases "belong" in admiralty.


Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz Mar 1992

Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz

Michigan Law Review

In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making ...


Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi Mar 1992

Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi

Michigan Law Review

This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test ...


Book Review —Rewriting The History Of The Judiciary Act Of 1789: Exposing Myths,Challenging Premises And Using New Evidence, Roger J. Miner '56 Jan 1992

Book Review —Rewriting The History Of The Judiciary Act Of 1789: Exposing Myths,Challenging Premises And Using New Evidence, Roger J. Miner '56

Book Reviews

No abstract provided.


Continuity And Change Redux: Market And State In American History, Richard Adelstein Jan 1992

Continuity And Change Redux: Market And State In American History, Richard Adelstein

Division II Faculty Publications

A review of Jonathan Hughes, The Government Habit Redux (1991).


Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun Jan 1992

Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun

Faculty Scholarship

None available.


Objectivity And Democracy, David K. Millon Jan 1992

Objectivity And Democracy, David K. Millon

Faculty Scholarship

As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive ...


From Libertarianism To Egalitarianism, Justin Schwartz Jan 1992

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough ...


The Questions Of Authority, Frederick Schauer Jan 1992

The Questions Of Authority, Frederick Schauer

Philip A. Hart Memorial Lecture

In 1992, Professor, Frederick Schauer of Harvard University, delivered the Georgetown Law Center’s twelfth Annual Philip A. Hart Memorial Lecture: "Two Cheers for Authority: Should Officials Obey the Law?."

Frederick Schauer is a David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Previously he served for 18 years as Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University, where he has served as academic dean and acting dean, and before that was a Professor of Law at the University of Michigan. He is the author of The ...


Charles E. Lindblom, Richard Adelstein Jan 1992

Charles E. Lindblom, Richard Adelstein

Division II Faculty Publications

An intellectual biography and review of the work of Charles E. Lindblom.


Victim Impact Evidence, Arbitrariness, And The Death Penalty: The Supreme Court Flipflops In Payne V. Tennessee, Aida Alaka Jan 1992

Victim Impact Evidence, Arbitrariness, And The Death Penalty: The Supreme Court Flipflops In Payne V. Tennessee, Aida Alaka

Loyola University Chicago Law Journal

No abstract provided.


Mu'min V. Virginia: The Supreme Court's Failure To Establish Adequate Judicial Procedures To Counter The Prejudicial Effects Of Pretrial Publicity, David Edsey Jan 1992

Mu'min V. Virginia: The Supreme Court's Failure To Establish Adequate Judicial Procedures To Counter The Prejudicial Effects Of Pretrial Publicity, David Edsey

Loyola University Chicago Law Journal

No abstract provided.


Issues For Men In The 1990s, Michael S. Kimmel Jan 1992

Issues For Men In The 1990s, Michael S. Kimmel

University of Miami Law Review

No abstract provided.


Justice, Mental Health, And Therapeutic Jurisprudence, David B. Wexler Jan 1992

Justice, Mental Health, And Therapeutic Jurisprudence, David B. Wexler

Cleveland State Law Review

Mental health law advocates and even scholars have typically been hostile toward, afraid of, or at best indifferent to, the mental health disciplines (mainly psychiatry and psychology) and their practitioners. Learning to be skeptical of supposed scientific expertise is an important lesson, and the law should never simply defer to psychiatry and the related disciplines. But to the extent that the legal system now ignores developments in the mental health disciplines, the lesson of healthy skepticism has been overlearned. It is my thesis, then, that those of us interested in 'justice" in mental health law ought not to adopt the ...