Jurisprudence Commons^™

Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan

Working Paper Series

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

The Most Dangerous Justice Rides Into The Sunset, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.