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Full-Text Articles in Jurisprudence
Shakespeare And The Supreme Court: How The Justices Reveal Their Ideologies By Referencing His Works, Rachel Anderson
Shakespeare And The Supreme Court: How The Justices Reveal Their Ideologies By Referencing His Works, Rachel Anderson
Honors Projects
The works of William Shakespeare have been referenced many times throughout history, even by Supreme Court justices. Building off of an observation of a mock trial by James Shapiro, this project puts the utilization of Shakespeare from three Court opinions in relation to its context within the play and the opinion to examine what the reference reveals about the authoring justices' ideology. In doing so, this project concludes that the justices utilize Shakespeare's works in their opinions for various reasons, including to infuse their beliefs into their argument. This implies that Supreme Court justices do not base their opinions on …
Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman
Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman
All Faculty Scholarship
A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is …
Fair Construction To Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Joshua Lloyd
Fair Construction To Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Joshua Lloyd
Senior Honors Theses
The proper method of constitutional interpretation has been debated throughout the history of the Supreme Court. This debate has been defined by the tension between the originalist and living constitution jurisprudences. Each has been dominant at one point in United States history. A fair construction jurisprudence was almost universally utilized by the Supreme Court to interpret the Constitution according to its original meaning until Plessy v. Ferguson. Then, due to an alliance between evangelicals and progressive scholars, a broader, more lenient living constitution jurisprudence developed which allowed justices to interpret the Constitution in light of changing social norms. Finally, …
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
All Faculty Scholarship
For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
All Faculty Scholarship
The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …