Jurisprudence Commons^™

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Divergence And Convergence At The Intersection Of Property And Contract, Giuseppe Dari-Mattiacci, Carmine Guerriero

Faculty Scholarship

In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely …

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Faculty Scholarship

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels

Faculty Scholarship

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Probabilistic Compliance, Alex Raskolnikov

Faculty Scholarship

Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to the new and unfamiliar probabilistic compliance framework. This shift brings the analysis closer to the world of legal practice and yields new theoretical insights. Most importantly, lower uncertainty tends to lead to more compliant positions and greater private gains. In contrast, the market for legal …

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.

Magna Carta In The Late Middle Ages: Over-Mighty Subjects, Under-Mighty Kings, And A Turn Away From Trial By Jury, David J. Seipp

Faculty Scholarship

What did English lawyers know about Magna Carta in the fourteenth and fifteenth centuries? How did they talk about it? Did they regard the king as above the law or subordinate to it? What did they make of the guarantees that we now think were most important in Magna Carta, the guarantee of judgment of peers or the law of the land, and of speedy justice? The evidence of the Year Books is that Magna Carta was treated as a minor statute, that the king was or ought to be above the law in many respects, and that trial by …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

The Supreme Court Of Israel: Formative Years, 1948-1955, Pnina Lahav

Faculty Scholarship

This article looks at the institutional and jurisprudential development of the Israeli Supreme Court in its early stages.

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Book Review, Michael E. Tigar

Faculty Scholarship

No abstract provided.