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Full-Text Articles in Jurisprudence

Precedent And Disagreement, Glen Staszewski Jan 2018

Precedent And Disagreement, Glen Staszewski

Faculty Publications

This essay reviews Randy Kozel’s new book, Settled Versus Right: A Theory of Precedent. It contends that far from presenting a fundamentally neutral approach that should reasonably be acceptable to everyone, Kozel’s second-best theory of precedent is deeply normative and inherently controversial, and most Justices would have compelling grounds for rejecting his proposed doctrinal reforms. The review proceeds to set forth the outlines of an alternative conception of precedent that is grounded in deliberative democratic theory. This theory accepts interpretive pluralism as a desirable feature of the American constitutional order. It also recognizes that the fundamental purposes of ...


Civil Rules Interpretive Theory, Lumen N. Mulligan, Glen Staszewski Jan 2017

Civil Rules Interpretive Theory, Lumen N. Mulligan, Glen Staszewski

Faculty Publications

No abstract provided.


Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski Jan 2016

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Publications

This essay responds to Pragmatism Rules by Professor Elizabeth Porter, which argues that the Supreme Court is justified in eschewing, at least at times, traditional tools of statutory construction when it interprets the Federal Rules of Civil Procedure. Porter devotes substantial attention in her piece to our prior work on the Supreme Court’s methods for implementing the Federal Rules. This response essay highlights some of the strengths of Porter’s article and identifies substantial areas of agreement. It also parts company with her analysis insofar as she contends that the Supreme Court is justified in supplanting the Rules drafters ...


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael A. Lawrence Jan 2016

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael A. Lawrence

Faculty Publications

No abstract provided.


Standing In The Shadow Of Popular Sovereignty, Michael D. Sant'ambrogio Jan 2015

Standing In The Shadow Of Popular Sovereignty, Michael D. Sant'ambrogio

Faculty Publications

No abstract provided.


The Dumbing Down Of Statutory Interpretation, Glen Staszewski Jan 2015

The Dumbing Down Of Statutory Interpretation, Glen Staszewski

Faculty Publications

No abstract provided.


Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski Jan 2014

Against Methodological Stare Decisis, Evan J. Criddle, Glen Staszewski

Faculty Publications

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover, Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of ...


The Extra-Legislative Veto, Michael D. Sant'ambrogio Jan 2014

The Extra-Legislative Veto, Michael D. Sant'ambrogio

Faculty Publications

No abstract provided.


Brown V. Board Of Education And National Federation Of Independent Business V. Sebelius: A Comparative Analysis Of Social Change, Brian Gilmore Jan 2014

Brown V. Board Of Education And National Federation Of Independent Business V. Sebelius: A Comparative Analysis Of Social Change, Brian Gilmore

Faculty Publications

No abstract provided.


The Shinto Cases: Religion, Culture, Or Both-The Japanese Supreme Court And Establishment Of Religion] Urisprudence, Frank S. Ravitch Jan 2013

The Shinto Cases: Religion, Culture, Or Both-The Japanese Supreme Court And Establishment Of Religion] Urisprudence, Frank S. Ravitch

Faculty Publications

No abstract provided.


Facts, Formalism, And The Brandeis Brief: The Origins Of A Myth, Noga Morag-Levine Jan 2013

Facts, Formalism, And The Brandeis Brief: The Origins Of A Myth, Noga Morag-Levine

Faculty Publications

No abstract provided.


The Expectation Measure And Its Discontents, Shawn J. Bayern, Melvin A. Eisenberg Jan 2013

The Expectation Measure And Its Discontents, Shawn J. Bayern, Melvin A. Eisenberg

Michigan State Law Review

No abstract provided.


Beyond Batson'S Scrutiny: A Preliminary Look At Racial Disparities In Prosecutorial Preemptory Strikes Following The Passage Of The North Carolina Racial Justice Act, Barbara O'Brien, Catherine M. Grosso Jan 2013

Beyond Batson'S Scrutiny: A Preliminary Look At Racial Disparities In Prosecutorial Preemptory Strikes Following The Passage Of The North Carolina Racial Justice Act, Barbara O'Brien, Catherine M. Grosso

Faculty Publications

The exercise of peremptory challenges remains the least regulated area of jury selection, largely left to the wisdom or whimsy of each litigator. One need not look back far to find a time when litigators brazenly used peremptory strikes to prevent black citizens from serving on juries. In fact, all-white juries remain common in 2012, even in jurisdictions with a substantial African-American population. Our paper explores whether the North Carolina Racial Justice Act might provide a better tool to mitigate the tenacious influence of race in the selection of juries.


Unconscionability And The Contingent Assumptions Of Contract Theory, M. Neil Browne, Lauren Biksacky Jan 2013

Unconscionability And The Contingent Assumptions Of Contract Theory, M. Neil Browne, Lauren Biksacky

Michigan State Law Review

No abstract provided.


Healing To Wellness Courts: Therapeutic Jurisprudence +, Joseph Thomas Flies-Away, Carrie E. Garrow Jan 2013

Healing To Wellness Courts: Therapeutic Jurisprudence +, Joseph Thomas Flies-Away, Carrie E. Garrow

Michigan State Law Review

No abstract provided.


The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski Jun 2012

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Publications

In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second ...


The Ninth Amendment In Congress, Brian C. Kalt Jan 2012

The Ninth Amendment In Congress, Brian C. Kalt

Faculty Publications

No abstract provided.


Indian Tribes And Human Rights Accountability, Wenona T. Singel Jan 2012

Indian Tribes And Human Rights Accountability, Wenona T. Singel

Faculty Publications

No abstract provided.


Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984-2005), David C. Baldus, Catherine M. Grosso, George Woodworth, Richard Newell Jan 2012

Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984-2005), David C. Baldus, Catherine M. Grosso, George Woodworth, Richard Newell

Faculty Publications

This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.

Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or “race effect” is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in ...


The Eye Of A Constitutional Storm: Pre-Election Review By The State Judiciary Of Initiative Amendments To State Constitutions, Scott L. Kafker, David A. Russcol Jan 2012

The Eye Of A Constitutional Storm: Pre-Election Review By The State Judiciary Of Initiative Amendments To State Constitutions, Scott L. Kafker, David A. Russcol

Michigan State Law Review

No abstract provided.


Report On Jury Selection Study, Barbara O'Brien, Catherine M. Grosso Dec 2011

Report On Jury Selection Study, Barbara O'Brien, Catherine M. Grosso

Faculty Publications

This report documents the study design, methodology, analysis, and results for a study on the exercise of peremptory challenges during jury selection in trials of all defendants on death row in North Carolina as of July 1, 2010. The study examined how prosecutors exercised peremptory challenges in capital cases to assess whether potential jurors’ race played any role in those decisions. The primary investigators for the study are Barbara O’Brien and Catherine Grosso. Both are associate professors of law at Michigan State University College of Law.


The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro Jan 2009

The Jurisprudential Niche Occupied By Law And Economics, Nicholas Mercuro

Faculty Publications

This paper describes the jurisprudential niche occupied by the several schools of thought that comprise the field of Law and Economics in present-day legal scholarship. It begins by providing a brief history of law in the U.S.; it highlights the void left in law by the Legal Realists; it then very briefly explores some of the theories that attempted to fill that void including critical legal studies, feminist jurisprudence, and critical race theory. The paper then turns to its main focus - describing the several schools of thought that comprise the field of Law and Economics that has also helped ...


Agency Statutory Interpretation And The Rule Of Common Law, Noga Morag-Levine Jan 2009

Agency Statutory Interpretation And The Rule Of Common Law, Noga Morag-Levine

Faculty Publications

No abstract provided.


The Challenges Of Fiduciary Administration, Glen Staszewski Jan 2009

The Challenges Of Fiduciary Administration, Glen Staszewski

Faculty Publications

No abstract provided.


Textualism And The Executive Branch, Glen Staszewski Jan 2009

Textualism And The Executive Branch, Glen Staszewski

Faculty Publications

No abstract provided.


American Rousseau: Barack Obama And The Social Contract, Brian Gilmore Jan 2009

American Rousseau: Barack Obama And The Social Contract, Brian Gilmore

Faculty Publications

No abstract provided.


Playing The Proof Game: Intelligent Design And The Law, Frank S. Ravitch Jan 2008

Playing The Proof Game: Intelligent Design And The Law, Frank S. Ravitch

Faculty Publications

Intelligent design advocates argue that excluding intelligent design from educational and scientific environments discriminates in favor of methodological naturalism and against other approaches for understanding natural phenomena. These arguments are flawed both legally and philosophically. In order to succeed ID advocates need to demonstrate that ID is science and that public school classes and scientific institutions are public fora for speech. Legal scholarship has generally ignored the most relevant arguments from philosophy of science and the relationship of those arguments to constitutional concepts. This article demonstrates that even when ID is given the benefit of the best scientific, philosophical, and ...


Tabloid Constitutionalism: How A Bill Doesn't Become A Law, Brian C. Kalt Jan 2008

Tabloid Constitutionalism: How A Bill Doesn't Become A Law, Brian C. Kalt

Faculty Publications

No abstract provided.


It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman Jan 2008

It's Not Just What You Think, But Also How You Think About It: The Effect Of Situationally Primed Mindsets On Legal Judgments And Decision Making, Barbara O'Brien, Daphna Oyserman

Faculty Publications

No abstract provided.


What If Every "If Only" Statement Were True?: The Logic Of Counterfactuals, Kevin W. Saunders Jan 2008

What If Every "If Only" Statement Were True?: The Logic Of Counterfactuals, Kevin W. Saunders

Faculty Publications

No abstract provided.