Jurisprudence Commons^™

Travelers, Reasoned Textualism, And The New Jurisprudence Of Erisa Preemption, Edward A. Zelinsky

Articles

Upon the enactment of the Employee Retirement Income Security Act of 1974 ("ERISA"), few would have predicted that, a generation later, ERISA's provisions preempting state law would be front page news, a central topic of national debate about health care and its regulation. Similarly, few foresaw at the time ERISA was adopted that the United States Supreme Court would have great difficulty construing ERISA's preemption provisions. By the same token, in 1974 the contemporary revival of interest in statutory textualism lay well into the future.

A Ray Of Light For Judges Blinded By Science: Triers Of Science And Intellectual Due Process, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

All Faculty Scholarship

No abstract provided.

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

Does Incommensurability Matter? Incommensurability And Public Policy, Richard Warner

All Faculty Scholarship

No abstract provided.

Coercing Privacy, Anita L. Allen

All Faculty Scholarship

No abstract provided.

A Secular Community May Not Execute Its Members, Richard Stith

Law Faculty Publications

The purpose of law is to provide a framework for the fulfillment of everyone in our community. We can disagree, debate, and vote about how much each of us should give of get to reach this goal. But we cannot begin to debate or doubt the wisdom of considering each human being an end rather than only a means. We as a community have problems, but none of us is the problem. Our problems are defined by the goal of universal human flourishing. To call that goal into question is to make coherent public discussion impossible. If people can just …

Must Jury Instructions Clearly Explain The Consequences Of Jury's Failure To Reach A Unanimous Verdict As To Either Life Imprisonment Or Death?, Rachel A. Van Cleave

Publications

No abstract provided.

Review Essay: Positivism, Emergent And Triumphant (Review Of Anthony Sebok, Legal Positivism In American Jurisprudence), Vincent A. Wellman

Law Faculty Research Publications

No abstract provided.

Bcgseu: Turning A Page In Canadian Human Rights Law, Dianne Pothier

Dianne Pothier Collection

The Supreme Court of Canada's decision in British Columbia Government and Service Employees' Union (BCGSEU) v. British Columbia (Public Service Employee Relations Commission)' starts like a classic Lord Denning judgment. Within the first few lines, without even knowing what the legal issue really is, you know who is going to win because of how that person is presented. Justice McLachlin's judgment, speaking for a unanimous nine-person Court, begins by noting that the grievor, Tawney Meiorin, "did her work well" but nonetheless "lost her job."' It was that dissonance that made the facts of the case compelling for reinstatement. But what …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

Narrative And Client-Centered Representation: What Is A True Believer To Do When His Two Favorite Theories Collide?, John B. Mitchell

Faculty Articles

Professor Mitchell illustrates that Client-centered Representation does not simplistically reduce to a single admonition: Tell the client's story. The concept is far more nuanced than that. It incorporates a constellation of ideas. Listen to the client's story. Hear what they want. Try to be creative about ways to tell the story. Look for opportunities to bring their story into the legal process. At the same time, the attorney must join together to discuss any risks and problems which may result from various strategic choices, including the risks in even telling the story and whether those risks are worth it to …

Victims' Rights, Rule Of Law, And The Threat To Liberal Jurisprudence, Ahmed A. White

Publications

No abstract provided.

Threats And Preemptive Practices, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Regulating The Market For Snitches , Ian Weinstein

Faculty Scholarship

These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …

On The Obligation Of The State To Extend A Right Of Self-Defense To Its Citizens, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

Buckley V. Valeo: A Landmark Of Political Freedom, Joel Gora

Faculty Scholarship

No abstract provided.

The Cutting Edge Of Poster Law, Michael A. Heller

Articles

Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

Law As Language (Reviewing Peter M. Tiersma, Legal Language (1999)), Francis J. Mootz Iii

Scholarly Works

The jacket of Professor Peter Tiersma’s book Legal Language illustrates the problem inherent in a linguistic study of legal language. The jacket features a legal document in fine print, with an overlay of a magnifying glass that brings some of the indecipherable words into focus. The problem, of course, is that a scholar conducting a linguistic study of language does not have access to a distinct "magnifying glass" that can posit language as an object; he can study language only with language.

Tiersma attempts to avoid the most difficult problems of self-reference that follow from the "interpretive turn" in social …

Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii

Scholarly Works

This essay appeared in a book celebrating Lon Fuller's contributions to jurisprudence. In it, Professor Mootz argued that Fuller's conception of secular natural law, designated as an "internal morality of law," lends welcome assistance to the effort to articulate a new direction in legal philosophy. He defended Fuller's natural-law approach from the common misinterpretations that it is either a hollow echo of the natural law tradition or an essentialist conception of law at odds with the legal-realist world that he helped to create with his doctrinal scholarship. By reading his famous, "The Case of the Speluncean Explorers," in a new …

Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii

Scholarly Works

Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. The irrelevance of the natural law tradition in …

The Architecture Of Judicial Independence, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz

All Faculty Scholarship

Economists and philosophers working on problems of rational choice have for some time been concerned with various puzzles raised by so-called "Ullysean" configurations: actors who rationally cause themselves to act irrationally. (e.g., the person who swallows Thomas Schelling's famous irrationality pill to preempt an attempted robbery). What has attracted less attention is that these configurations present fascinating problems for morality, most especially for non-consequentialist morality. This article undertakes the exploration of some of these problems and the implications they hold for the morality of preemptive detention, preemptive self-defense, the creation of prophylactic crimes (like our drug laws) and a variety …

Deadweight Costs And Intrinsic Wrongs Of Nativism: Economics, Freedom, And Legal Suppression Of Spanish, William W. Bratton, Drucilla L. Cornell

All Faculty Scholarship

No abstract provided.

Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin

Articles & Chapters

Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and …

The Defense Of Traditional Marriage, George W. Dent

Faculty Publications

This article reviews the possible justifications for legal recognition of marriage and finds some, such as encouraging stable, loving relationships, unpersuasive. However, other rationales-including protecting children, socializing adults, and promoting individual happiness-are valid, and these rationales apply only to traditional marriages. Accordingly, society has strong reasons to favor traditional marriage and to deny such treatment to the unmarried and to homosexual, endogamous and bestial relationships.

Causes Of Inequality In The International Economic Order: Critical Race Theory And Postcolonial Development, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

No Vehicles In The Park, Pierre Schlag

Publications

No abstract provided.

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.