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Articles 1 - 9 of 9

Full-Text Articles in Jurisprudence

Custom In Our Courts: Reconciling Theory With Reality, Nikki C. Gutierrez, Mitu Gulati Jan 2016

Custom In Our Courts: Reconciling Theory With Reality, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in US legal academia centers on customary international law's domestic status after Erie Railroad v. Tompkins. At one end, champions of the "modern position" support CIL's wholesale incorporation into post-Erie federal common law. At the other end, "revisionists" argue that federal courts cannot apply CIL as federal law absent federal political branch authorization. Scholars on both sides of the Erie debate also make claims about what sources judges cite to when discerning CIL, which they then use to support their arguments regarding CIL's domestic status. Interestingly ...


Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie Jan 2015

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.


Can The Law Meet The Demands Made On It?, George C. Christie Jan 2014

Can The Law Meet The Demands Made On It?, George C. Christie

Faculty Scholarship

This is my contribution to a festscrift in honor of Professor Don Wallace on his retirement from the Georgetown University School of Law. My essay points out the problems and dangers of the increasing delegation to international and domestic courts, in broad and vague value-laden language, the responsibility of making basic moral and policy decisions for society. It saddles courts with a task that they are not particularly suited to perform and it is certainly not the way a democratic society should function.


A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young Jan 2013

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision of ...


The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel Jan 2013

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.


Judicial Decision Making In A World Of Natural Law And Natural Rights, George C. Christie Jan 2012

Judicial Decision Making In A World Of Natural Law And Natural Rights, George C. Christie

Faculty Scholarship

This article was my contribution to a symposium celebrating the achievements of John Finnis held at the Villanova University School of Law. Finnis’ greatest work is his Natural Law and Natural Rights. I agree with Finnis’ rejection of an approach to natural law which focuses on the notion of natural rights. Finnis’ approach instead focuses on a natural law that is based on the idea that there are certain basic human goods such as the search for knowledge, the maintenance of life, the sharing of fellowship with other human beings, the capacity to enjoy aesthetic experiences, and the exercise of ...


Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher Jan 2011

Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Faculty Scholarship

No abstract provided.


Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of ...


Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler Jan 2000

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a ...