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Articles 1 - 19 of 19
Full-Text Articles in Jurisprudence
Becoming A Doctrine, Allison Orr Larsen
Becoming A Doctrine, Allison Orr Larsen
Faculty Publications
On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …
Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman
Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman
Faculty Publications
The Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation …
The Temptation Of Cosmic Private Law Theory, Nathan B. Oman
The Temptation Of Cosmic Private Law Theory, Nathan B. Oman
Faculty Publications
It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …
Theories Of Prosecution, Jeffrey Bellin
Theories Of Prosecution, Jeffrey Bellin
Faculty Publications
For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.
The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman
Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman
Faculty Publications
No abstract provided.
The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle
The Internal Morality Of International Law, Evan Fox-Decent, Evan J. Criddle
Faculty Publications
No abstract provided.
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney
Faculty Publications
One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Faculty Publications
The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu …
Trademark As Promise, Laura A. Heymann
Leiter On The Legal Realists, Michael S. Green
Leiter On The Legal Realists, Michael S. Green
Faculty Publications
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to …
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Faculty Publications
The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …
The Unruliness Of Rules, Peter A. Alces
Is The Republic Circling The Drain?, W. Taylor Reveley Iii
Is The Republic Circling The Drain?, W. Taylor Reveley Iii
Faculty Publications
No abstract provided.
Regret And Contract "Science", Peter A. Alces
Regret And Contract "Science", Peter A. Alces
Faculty Publications
No abstract provided.
The Radical Feminist Defense Of Individualism, Cynthia V. Ward
The Radical Feminist Defense Of Individualism, Cynthia V. Ward
Faculty Publications
No abstract provided.
A Kinder, Gentler Liberalism? Visions Of Empathy In Feminist And Communitarian Literature, Cynthia V. Ward
A Kinder, Gentler Liberalism? Visions Of Empathy In Feminist And Communitarian Literature, Cynthia V. Ward
Faculty Publications
No abstract provided.
Factors Influencing Judges In Interpreting Statutes, Arthur W. Phelps
Factors Influencing Judges In Interpreting Statutes, Arthur W. Phelps
Faculty Publications
No abstract provided.
What Is A Question Of Law?, Arthur W. Phelps
What Is A Question Of Law?, Arthur W. Phelps
Faculty Publications
No abstract provided.
The Notice Of Motion And Modern Procedural Reform, Arthur W. Phelps
The Notice Of Motion And Modern Procedural Reform, Arthur W. Phelps
Faculty Publications
No abstract provided.