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Full-Text Articles in Jurisprudence

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney Apr 2018

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 ...


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 ...


The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse Jan 2018

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 ...


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.


Crafting Precedent, Richard C. Chen Jan 2017

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on its ...


Reconsidering Substantive Canons, Anita S. Krishnakumar Jan 2017

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, afford ...


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.


The Sherlock Holmes Canon, Anita S. Krishnakumar Jan 2016

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 statutory interpretation 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 intend ...


Dueling Canons, Anita S. Krishnakumar Jan 2016

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 ...


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.


A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele Jan 2015

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis ...


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.


Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh Jan 2014

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson ...


The Age Of Constitutions In The Americas, M C. Mirow Jan 2014

The Age Of Constitutions In The Americas, M C. Mirow

Faculty Publications

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and ...


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.


Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez Jan 2013

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

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.


Disclosure As Distribution, Jeremy N. Sheff Jan 2013

Disclosure As Distribution, Jeremy N. Sheff

Faculty Publications

This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors' implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any ...


Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui Jan 2013

Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui

Faculty Publications

The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial ...


The Law And Economics Of Norms, Juliet P. Kostritsky Jan 2013

The Law And Economics Of Norms, Juliet P. Kostritsky

Faculty Publications

The Evolution of Norms Within Economics and Law: Why Norms Were Ignored and Why They Matter Under Realistic Models of Behavior in Which Norms Emerge as the Outcome of Exchange to Reduce Costs


Marks, Morals, And Markets, Jeremy N. Sheff Jan 2013

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to ...


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 ...