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Articles 1 - 17 of 17
Full-Text Articles in Jurisprudence
The Chief Prosecutor, Sai Prakash
The Chief Prosecutor, Sai Prakash
University of San Diego Public Law and Legal Theory Research Paper Series
Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite …
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins
University of San Diego Public Law and Legal Theory Research Paper Series
In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
University of San Diego Public Law and Legal Theory Research Paper Series
This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
University of San Diego Public Law and Legal Theory Research Paper Series
“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
University of San Diego Public Law and Legal Theory Research Paper Series
This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The …
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place …
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
University of San Diego Public Law and Legal Theory Research Paper Series
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …
Lawyers As Gatekeepers, Fred C. Zacharias
Lawyers As Gatekeepers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Three recent legislative and regulatory initiatives -- the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative – all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers – which some of the opponents deem equivalent to operating like the “secret police in Eastern European countries.” This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one’s position on the merits of the specific reforms currently being proposed, it …
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
The Hollowness Of The Harm Principle, Steven D. Smith
The Hollowness Of The Harm Principle, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
University of San Diego Public Law and Legal Theory Research Paper Series
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
University of San Diego Public Law and Legal Theory Research Paper Series
This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …
A Tournament Of Virtue, Lawrence B. Solum
A Tournament Of Virtue, Lawrence B. Solum
University of San Diego Public Law and Legal Theory Research Paper Series
How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …
Generic Constitutional Law, David S. Law
Generic Constitutional Law, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …