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Full-Text Articles in Jurisprudence

Aspirations Of Objectivity: Systemic Illusions Of Justice In The Biased Courtroom, Meagan B. Roderique Jan 2018

Aspirations Of Objectivity: Systemic Illusions Of Justice In The Biased Courtroom, Meagan B. Roderique

Scripps Senior Theses

Given the ever-growing body of evidence surrounding implicit bias in and beyond the institution of the law, there is an equally growing need for the law to respond to the accurate science of prejudice in its aspiration to objective practice and just decision-making. Examined herein are the existing legal conceptualizations of implicit bias as utilized in the courtroom; implicit bias as peripheral to law and implicit bias as effectual in law, but not without active resolution. These views and the interventional methods, materials, and procedures they inspire are widely employed to appreciably “un-bias” legal actors and civic participants; however, without ...


Jurisprudence Between Science And The Humanities, Dan Priel Jul 2016

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud Oct 2015

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

François Tanguay-Renaud

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.


Toward A Jurisprudence Of Social Values, Richard K. Greenstein Jan 2015

Toward A Jurisprudence Of Social Values, Richard K. Greenstein

Washington University Jurisprudence Review

Legal theory wrestles perennially with a variety of seemingly intractable problems. I include among them questions about what we are doing when we interpret legal texts, the distinctions between hard and easy cases and between rules and standards, and the meaning of the rule of law. I argue in this essay that we can, in fact, make substantial progress toward clarifying these problems and making them much more intelligible by keeping in mind the role that social values play in law. And that role is fundamental: social values constitute the law.

Part I sketches a jurisprudential framework for thinking about ...


Is Coercion Necessary For Law? The Role Of Coercion In International And Domestic Law, Sandra Raponi Jan 2015

Is Coercion Necessary For Law? The Role Of Coercion In International And Domestic Law, Sandra Raponi

Washington University Jurisprudence Review

Critics of international law argue that it is not really law because it lacks a supranational system of coercive sanctions. International legal scholars and lawyers primarily refute this by demonstrating that international law is in fact enforced, albeit in decentralized and less coercive ways. I will focus instead on the presumption behind this skeptical view—the idea that law must be coercively enforced. First, I argue that coercive enforcement is not conceptually necessary for law or legal obligations. Second, I consider the claim that coercive enforcement is nonetheless necessary for instrumental reasons. I argue that while physical coercion is instrumentally ...


Foucault And Tax Jurisprudence: On The Creation Of A “Delinquent” Class Of Taxpayer, Bret N. Bogenschneider Jan 2015

Foucault And Tax Jurisprudence: On The Creation Of A “Delinquent” Class Of Taxpayer, Bret N. Bogenschneider

Washington University Jurisprudence Review

In Discipline and Punish, Foucault described the role of the “disciplinary institution” in the formation of modern society. An example of such a modern Foucauldian disciplinary institution is the Internal Revenue Service (IRS). The IRS currently devotes a substantial portion of its enforcement efforts against small businesses and low-income individual taxpayers. The IRS collection activity, as directed against low-income taxpayers, often manifests in Foucault´s “Philadelphia”-style prison, but without walls. The delinquent taxpayer becomes the delinquent social class with a diminished earning capacity, thereby directly undermining the reformatory goal of punishment. This audit process is a very different enforcement ...


Freedom Of Marriage: An Analysis Of Positive And Negative Rights, Rachel A. Washburn Jan 2015

Freedom Of Marriage: An Analysis Of Positive And Negative Rights, Rachel A. Washburn

Washington University Jurisprudence Review

The institution of marriage is deeply embedded in modern society. Within the United States, legal recognition of marriage conveys both social dignity and material benefits to married individuals. As far back as 1967, the Supreme Court has treated freedom of marriage as a Constitutional right necessary to protect personhood rights such as liberty and autonomy. However, it did not fully extend this right to same-sex couples until its 2015 decision in Obergefell v. Hodges.

Justice Scalia criticizes the majority opinion in Obergefell as lacking logic and precision, yet it reconciles jurisprudential discrepancies in prior case law addressing the right of ...


Alleviating Own-Race Bias In Cross-Racial Identifications, Bryan S. Ryan Jan 2015

Alleviating Own-Race Bias In Cross-Racial Identifications, Bryan S. Ryan

Washington University Jurisprudence Review

Over the past 80 years, courts, social scientists, and legal scholars have come to agree that eyewitness testimony is largely unreliable due to a variety of confounding factors. One prominent factor that makes eyewitness testimony faulty is own-race bias; individuals are generally better at recognizing members of their own race and tend to be highly inaccurate in identifying persons of other races. This instance, where a witness of one race attempts to identify a member of another race, is referred to as a cross-racial identification. Own-race bias in cross-racial identifications creates racial discrimination in the American judicial system, where a ...


Two Dogmas Of Originalism, Ian Bartrum Jan 2015

Two Dogmas Of Originalism, Ian Bartrum

Washington University Jurisprudence Review

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the ...


Judge Posner’S Simple Law, Mitchell N. Berman Jan 2015

Judge Posner’S Simple Law, Mitchell N. Berman

Faculty Scholarship at Penn Law

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range ...


On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport Nov 2014

On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport

Washington University Jurisprudence Review

No abstract provided.


Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong Nov 2014

Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong

Washington University Jurisprudence Review

No abstract provided.


Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack Nov 2014

Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack

Washington University Jurisprudence Review

No abstract provided.


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss Jan 2014

Confined To A Narrative: Approaching Rape Shield Laws Through Legal Narratology, Kathryn C. Swiss

Washington University Jurisprudence Review

No abstract provided.


Reconstructing Constitutional Punishment, Paulo Barrozo Jan 2014

Reconstructing Constitutional Punishment, Paulo Barrozo

Washington University Jurisprudence Review

Constitutional orders punish—and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii Jan 2014

Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii

Washington University Jurisprudence Review

No abstract provided.


Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron Jan 2014

Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron

Washington University Jurisprudence Review

No abstract provided.


Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock Jan 2014

Reasonable Rage: The Problem With Stereotypes In Provocation Cases, Nicole A.K. Matlock

Washington University Jurisprudence Review

No abstract provided.


An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen Jan 2014

An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen

Washington University Jurisprudence Review

No abstract provided.


A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz Jun 2013

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily ...


Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre Mar 2013

Book Review: Julie Dickson And Pavlos Eleftheriadis, Philosophical Foundations Of European Union Law, Arthur Dyevre

Arthur Dyevre

Change in the legal academy tends to be spurred by changes in the legal reality itself rather than by methodological and conceptual innovation emerging from within the discipline. In that sense, legal developments in the real world habitually seem to be ahead of the scholarship. A new phenomenon emerges, which legal scholars then try to apprehend via the established tools and categories of legal thought, soon to discover that these fail to capture the essence of the new reality. The first to experience the changed legal world are usually the scholars who are closest to practice; those who are intimate ...


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed ...


Privacy Law: Positive Theory And Normative Practice, Anita L. Allen Jan 2013

Privacy Law: Positive Theory And Normative Practice, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman Dec 2012

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no law on ...


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the ...


Copyright And Personhood Revisited, Christopher S. Yoo Sep 2012

Copyright And Personhood Revisited, Christopher S. Yoo

Faculty Scholarship at Penn Law

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom, which typically invokes the work of Immanuel Kant and Georg Wilhelm Friedrich Hegel as its philosophical foundation, views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Essay argues that the conventional wisdom is fundamentally flawed. It is inconsistent both with Kant’s and Hegel’s theories about the relationship between property and personality and with their specific writings about ...


The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin Feb 2012

The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin

San Diego Law Review

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a ...


Jurisprudence Between Science And The Humanities, Dan Priel Jan 2012

Jurisprudence Between Science And The Humanities, Dan Priel

Washington University Jurisprudence Review

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey Feb 2011

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources ...