Jurisprudence Commons^™

The Second Amendment´S Fixed Meaning And Multiple Purposes, Thiago L. B. Sturzenegger

Thiago L. B. Sturzenegger

The Second Amendment’s Fixed Meaning and Multiple Purposes

The faith to the Constitution’s textual meaning may provide the interpreter with the ability to perceive the adaptability of a constitutional provision to different social and political contexts. The text of the Constitution refers to principles of law; principles that are indispensable in different ways throughout time. Textualism as a constitutional interpretation model may offer the path to a more versatile Constitution.

To support this statement, this work examines the cases in which the Supreme Court interpreted the Second Amendment to the Constitution. The focal point of interest is the uses of …

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 this …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

Through A Prism Darkly: Surveillance And Speech Suppression In The Post-Democracy Electronic State", David Barnhizer

David Barnhizer

Through a PRISM Darkly: Surveillance and Speech Suppression in the “Post-Democracy Electronic State” David Barnhizer There is no longer an American democracy. America is changing by the moment into a new political form, the “Post-Democracy Electronic State”. It has “morphed” into competing fragments operating within the physical territory defined as the United States while tenuously holding on to a few of the basic creeds that represent what we long considered an exceptional political experiment. That post-Democracy political order paradoxically consists of a combination of fragmented special interests eager to punish anyone that challenges their desires and a central government that …

"Linguistic Cleansing": Strategies For Redesigning Human Perception And Behavior, David Barnhizer

David Barnhizer

James Madison recognized the need to balance competing interests in his analysis of factious groups. In Federalist No. 10, Madison sets out the idea of faction in the following words. “By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Madison goes on to describe two “cures” for faction. One is to “destroy the liberty” that allows it to bloom, …

Can A Pluralistic Commonwealth Endure?, Brian M. Mccall

Brian M McCall

This article considers whether the American pluralist system can satisfy Cicero's definition of a commonwealth as a multitude united in a definition of law and justice. The analysis is based upon a review of Thaddeus Kozinski's book, The Problem or Religious Pluralism and Why Philosophers Can't Solve It. This book critiques the philosophy of John Rawls, Jacques Maritain and Alisdaire MacIntyre. The critique is based upon Cicero's definition of a commonwealth and the article concludes that a society which maintains a deep pluralism over the first principles of law and justice cannot survive as a commonwealth.

Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

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 …

Reciprocal Antidiscrimination Arguments, Yofi Tirosh

Yofi Tirosh

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant …

The Right To Be Fat, Yofi Tirosh

Yofi Tirosh

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be …

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

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 …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

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 …

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

The Promise And Paradox Of Max Weber's Legal Sociology: The "Categories Of Legal Thought" As Types Of Meaningful Action And The Persistence Of The Problem Of Judicial Legisaltion, Faisal Chaudhry

Faisal Chaudhry

Unsurpassed in its ambition and historical scope, Max Weber's legal sociology centers around the four "categories of legal thought" that follow from his distinction between formal and substantive modes of rationality and irrationality in the conduct of lawfinding and lawmaking activity. At the same time, Weber's general sociology is built around four ideal types of possible meaningful conduct by individual actors, ranging from the instrumentally rational to the affective. Despite its visibility, the lack of meaningful connection Weber makes between these two categorical schemes has never adequately been remedied or even explained by his inheritors. This article seeks to do …

Book Review - 'The Language Of Statutes' By Lawrence M. Solan, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois

Goutam U Jois

In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

Is Equality A Totally Empty Idea?, Anthony D'Amato

Faculty Working Papers

Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …

Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan

Working Paper Series

This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz, Derek Stafford

Law & Economics Working Papers Archive: 2003-2009

Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure—operationalized as the professional and social connections between judicial actors—partially directs outcomes in the hierarchical federal judiciary.

Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its nature. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Cornell Law Faculty Publications

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …