Law Commons^™

Sticky Slopes, David Schraub

David Schraub

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to injure these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where the Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition actually consists of two very different strands: a liberal humanist view that …

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

Acontextual Judicial Review, Louis Michael Seidman

Louis Michael Seidman

Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political …

Trout Of Bounds: The Effects Of The Federal Circuit Court Of Appeals’ Incorrect Fifth Amendment Takings Analysis In Casitas Municipal Water District V. United States, Raymond Dake

Raymond Dake

Abstract: The Federal Circuit Court of Appeals decision in Castias Municipal Water District v. United States to apply a physical takings analysis to the partial interference of the water district’s water rights by the government in order to protect the steelhead trout through enforcement of the Endanger Species Act (“ESA”) is incorrect, plain and simple. Instead, I argue for the use of a regulatory takings analysis for partial takings of rights to use water under the Penn Central Test. The Casitas Court’s ruling misapplies California water law, disregards U.S. Supreme Court precedent from Tahoe-Sierra, ignores underlying theory and policy to …

Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling

Tobin Sparling

President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic presumptions. …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Modern First Amendment jurisprudence is deeply paradoxical in nature. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many decisions protect speech that appears to harm these values by attacking the dignity and personality of other people or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality comes from. I argue that the American free speech tradition actually consists of two very different strands: a liberal humanist view that emphasizes the …

Towards Cultural Autonomy In Tibet, George Zheng

George Zheng

Accommodating cultural distinctiveness of minority ethnic groups in multi-ethnic states has been an issue of theoretical importance and practical urgency for decades. China is the most populous multi-ethnic country in the world with a unique institutional design for ethnic minorities. However, this institutional design, namely, Minzu Quyu Zizhi (Regional Ethnic Autonomy), has not been properly studied before being criticized or ignored by the western commentators. In the western world, the Tibet issue has been extensively discussed in the context of human rights and “universal” constitutional principles, but rarely in the context of Chinese constitutional law. This article aims to fill …

The Art Of Discretion: Umpires As Judges, Carrie Leonetti

Carrie Leonetti

This Essay posits that those who object to the oft-employed judges-as-umpires analogy (not to mention many of those who employ it) do not really understand what umpires do because calling balls and strikes is highly complicated, nuanced, and discretionary, involving determinations of the intents of the pitcher and batter and the reasonableness of the batter’s actions at the plate. It argues that the core of the judges-as-umpires analogy – the idea that the parameters of the strike zone are fixed and not a matter of personal judgment – is faulty because, while the definition of the strike zone is fixed …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

Dialectical Jurisprudence: Aristotle And The Concept Of Law, John T. Valauri

John T. Valauri

This article offers a therapy for modern analytic legal philosophy’s bipolar disorder, a disorder manifested in the tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. The upshot of this situation has been the division of Anglo-American legal philosophy into two warring camps—positivist and non-positivist. Through an examination of puzzles involving conceptual analysis and legal rules, this article suggests a dialectical alternative to the bipolar disorder, an alternative inspired by Aristotle’s practical philosophy. This dialectical jurisprudence seeks to change the pursuit of the nature of law from a search for necessary and sufficient conditions …

Conceptual Analysis In Science And Law, Aaron Rappaport

Aaron Rappaport

Ever since H. L. A. Hart’s magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines’ mission: Legal theorists struggle with abstract questions about the “nature” of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ? This paper offers …

Democracy At The Corner Of First And Fourteenth: Judicial Campaign Spending And Equality, James Sample

James Sample

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding …

Smoke, Mirrors & Contract Law, Danielle K. Hart

Danielle K Hart

Abstract: Contract law is set up to be transaction enforcing, that is, to be binding. Binding means two different but related things. First, “binding” means that the contract is valid as between the parties (because it satisfies contract law’s formation requirements) and, second, it means that the rights and obligations set forth in that contract will be enforced by the state on behalf of one of the parties over the objection of the other, now resisting party. Modern contract law uses several well-established assumptions about the contracting parties, including the way they behave when contracting, and the roles of the …

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

Reaction Or Reformation?: Leo Strauss And American Constitutional Law, Andrew C. Spiropoulos

Andrew C. Spiropoulos

This article explains the importance of the work of the political theorist Leo Strauss to the study of American constitutional law. The foundation of Strauss's work was his belief that the civilization of the West faces a profound crisis. This crisis, he argued, was a crisis of modernity, by which he meant modern political philosophy. The nature of this crisis is the West's loss of faith in reason, the cornerstone of its way of life. This loss of faith threatens the intellectual, spiritual, and even physical health of the West. Strauss argued that this crisis came about because of the …