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Articles 1 - 30 of 46
Full-Text Articles in Jurisprudence
Problems With Authority, Amy J. Griffin
Problems With Authority, Amy J. Griffin
St. John's Law Review
(Excerpt)
Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the …
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise
St. John's Law Review
In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.
Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …
The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa
The Last Lecture: State Anti-Slapp Statutes And The Federal Courts, Charles W. Adams, Mbilike M. Mwafulirwa
St. John's Law Review
(Excerpt)
An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of …
Book Review: Commercial Litigation In New York State Courts (5th Ed.) Edited By Robert L. Haig, Kathryn C. Cole
Book Review: Commercial Litigation In New York State Courts (5th Ed.) Edited By Robert L. Haig, Kathryn C. Cole
St. John's Law Review
(Excerpt)
Every New York commercial litigator needs as an arrow in her quiver Commercial Litigation in New York State Courts (“Treatise”). Now in its Fifth Edition, this renowned Treatise not only analyzes in-depth the procedural law and the substantive commercial law of New York, but it is replete with invaluable “nuggets of wisdom” and critical guidance for the “attainment of objectives” during a litigation for both plaintiffs and defendants. What began as a three volume resource first published in 1995, the Treatise now boasts ten volumes, 156 chapters (28 of which have been added since the Fourth Edition), and has …
Cracking The Whole Code Rule, Anita S. Krishnakumar
Cracking The Whole Code Rule, Anita S. Krishnakumar
Faculty Publications
Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.
This Article provides the …
Meta Rules For Ordinary Meaning, Anita S. Krishnakumar
Meta Rules For Ordinary Meaning, Anita S. Krishnakumar
Faculty Publications
(Excerpt)
“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English …
Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright
Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright
St. John's Law Review
(Excerpt)
Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. …
State Constitutional Provisions Allowing Juries To Interpret The Law Are Not As Crazy As They Sound, Marcus Alexander Gadson
State Constitutional Provisions Allowing Juries To Interpret The Law Are Not As Crazy As They Sound, Marcus Alexander Gadson
St. John's Law Review
(Excerpt)
This Article questions that consensus. Joining a larger debate about the jury’s proper role, it argues that, even today, these provisions are a defensible component of a criminal justice system. First, this Article argues that the jury is the entity in the justice system most incentivized to approach legal questions with an eye to what the best interpretation is and not the most politically palatable result. Second, this Article argues that the jury’s ability to deliberate and consider opinions from individuals hailing from a wider variety of backgrounds than those who typically become judges may provide advantages over a …
Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, Abel Rodríguez, Jennifer A. Bulcock
Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, Abel Rodríguez, Jennifer A. Bulcock
Faculty Publications
Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens …
Legal Sets, Jeremy N. Sheff
Legal Sets, Jeremy N. Sheff
Faculty Publications
In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …
"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain
"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain
St. John's Law Review
(Excerpt)
One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.
I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …
The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse
The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse
Faculty Publications
Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …
Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M.
Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M.
The Catholic Lawyer
No abstract provided.
A Christian Jurisprudence, John Kuhn Bleimaier
A Christian Jurisprudence, John Kuhn Bleimaier
The Catholic Lawyer
No abstract provided.
A Jurisprudence Of Faith: An Experiment In Using Theology To Interpret Jurisprudence, Timothy L. Fort
A Jurisprudence Of Faith: An Experiment In Using Theology To Interpret Jurisprudence, Timothy L. Fort
The Catholic Lawyer
No abstract provided.
A New Jurisprudential Aspect Of Antisocial Personality Disorder In Relation To Marriage, Reverend Augustine Mendonca
A New Jurisprudential Aspect Of Antisocial Personality Disorder In Relation To Marriage, Reverend Augustine Mendonca
The Catholic Lawyer
No abstract provided.
Toward A Theory Of Judicial Decisionmaking: A Synthesis Of Ideologist Jurisprudence And Doctrinalism, Raymond A. Belliotti
Toward A Theory Of Judicial Decisionmaking: A Synthesis Of Ideologist Jurisprudence And Doctrinalism, Raymond A. Belliotti
The Catholic Lawyer
No abstract provided.
The Process Of Responsible Decision: Observations On The Jurisprudence Of Professor Jones, Edward N. Peters
The Process Of Responsible Decision: Observations On The Jurisprudence Of Professor Jones, Edward N. Peters
The Catholic Lawyer
No abstract provided.
The Politics Of Jurisprudence: Liberty And Equality In Rawls And Dworkin, Stephen C. Hicks
The Politics Of Jurisprudence: Liberty And Equality In Rawls And Dworkin, Stephen C. Hicks
The Catholic Lawyer
No abstract provided.
A Jurisprudence Of Planning: Notes On The Outline Of Law Required To Support And Control Planners, Richard O. Brooks
A Jurisprudence Of Planning: Notes On The Outline Of Law Required To Support And Control Planners, Richard O. Brooks
The Catholic Lawyer
No abstract provided.
The Jurisprudence Of Conscription: Social Contract, Moral Obligation, And Proposals, James M. Thunder
The Jurisprudence Of Conscription: Social Contract, Moral Obligation, And Proposals, James M. Thunder
The Catholic Lawyer
No abstract provided.
On Eccentric Constitutional Jurisprudence, William D. Valente
On Eccentric Constitutional Jurisprudence, William D. Valente
The Catholic Lawyer
No abstract provided.
A Call For A Genuinely American Jurisprudence, John Underwood Lewis
A Call For A Genuinely American Jurisprudence, John Underwood Lewis
The Catholic Lawyer
No abstract provided.
Reconsidering Substantive Canons, Anita S. Krishnakumar
Reconsidering Substantive Canons, Anita S. Krishnakumar
Faculty Publications
This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, …
In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher
In The Shadow Of A Myth: Bargaining For Same-Sex Divorce, Noa Ben-Asher
Faculty Publications
This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article’s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser’s terminology, they are not “bargaining in the shadow of the law.” Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce.
The Article …
Jurisprudence: Readings And Cases, Dr. Miriam Theresa Rooney
Jurisprudence: Readings And Cases, Dr. Miriam Theresa Rooney
The Catholic Lawyer
No abstract provided.
Jurisprudence - A Teaching Problem, Miriam T. Rooney
Jurisprudence - A Teaching Problem, Miriam T. Rooney
The Catholic Lawyer
No abstract provided.
Government Under Law, Right Reverend Monsignor Robert J. White
Government Under Law, Right Reverend Monsignor Robert J. White
The Catholic Lawyer
No abstract provided.
Dueling Canons, Anita S. Krishnakumar
Dueling Canons, Anita S. Krishnakumar
Faculty Publications
This Article offers the first targeted study of the Supreme Court’s use of canons and other tools of statutory interpretation in a “dueling” manner—that is, in both the majority and dissenting opinions in the same case, to support opposing outcomes. Taking its inspiration from Karl Llewellyn’s celebrated list of canons and countercanons, this Article examines how often and in what ways the members of the Roberts Court counter each other’s references to particular interpretive tools when disagreeing about the proper reading of a statute. Many of the Article’s findings are unexpected and undermine the assumptions made by some of the …
The Sherlock Holmes Canon, Anita S. Krishnakumar
The Sherlock Holmes Canon, Anita S. Krishnakumar
Faculty Publications
Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a new law or statutory amendment would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not …