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Articles 1 - 17 of 17

Full-Text Articles in Jurisprudence

Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston Jan 2019

Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory, Miriam Galston

Washington University Jurisprudence Review

Much has been written about Obergefell v. Hodges, holding that

same-sex marriage is protected by the Fourteenth Amendment. Virtually

all commentators view the decision as an example of an increasingly

polarized Supreme Court.

This article challenges that characterization by analyzing Kennedy’s

majority opinion and Roberts’ dissent in Obergefell in light of the legal

theories of H. L. A. Hart and Lon Fuller. The article argues that, from a

legal theory perspective, Kennedy and Roberts exhibit numerous, often

surprising commonalities. In addition, Kennedy’s arguments seem to

accurately reflect the methodology he explicitly endorses. Roberts, in

contrast, seems to exaggerate ...


Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham Jan 2018

Dworkin's Incomplete Interpretation Of Democracy, Alexander Latham

Washington University Jurisprudence Review

This essay mounts an immanent critique of Dworkin’s defense of judicial review. Taking Dworkin’s methodology of constructive interpretation as my starting point, I argue that when analyzing the role that political institutions play in democracy, Dworkin fails to take his own method far enough. In particular, he limits his constructive interpretation of democracy to the practice of voting, overlooking the distinctive democratic values implicit within the institutions and practices of legislation by representative assembly. Ironically, given his well-known critique of majoritarian democracy, this failure leads Dworkin to adopt majoritarianism as a starting point when assessing particular institutions. A ...


Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum Jan 2017

Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

Washington University Jurisprudence Review

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia’s death has created. “Public meaning” originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these “New Originalists” have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested—that is, we often do not seek semantic or legal agreement—makes particular linguistic indeterminacies highly ...


Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess Jan 2015

Punishment In The State Of Nature: John Locke And Criminal Punishment In The United States Of America, Matthew K. Suess

Washington University Jurisprudence Review

No abstract provided.


The Ontological Foundations Of The Debate Over Originalism, André Leduc Jan 2015

The Ontological Foundations Of The Debate Over Originalism, André Leduc

Washington University Jurisprudence Review

Because the participants in the debate over constitutional originalism generally understand the controversy to be over a matter of the objective truth of competing interpretations of the Constitution, they do not believe that their mission is to persuade the other side. When what is at stake is a matter of objective truth, subjective opinions are of less moment.

This Article begins the long overdue transcendence of our increasingly fruitless and acrimonious debate over originalism by articulating the tacit philosophical premises that make the debate possible. It demonstrates that originalism, despite its pretensions to common sense and its disavowal of abstruse ...


On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport Nov 2014

On The Conceptual Confusions Of Jurisprudence, Aaron J. Rappaport

Washington University Jurisprudence Review

No abstract provided.


Rationality, Legitimacy, & The Law, Daniel Z. Epstein Nov 2014

Rationality, Legitimacy, & The Law, Daniel Z. Epstein

Washington University Jurisprudence Review

American legal realism was committed to examining legal reasoning in terms of the actual experiences of judges. Because the realist project sought to use social science tools to examine human nature, the contemporary rise of cognitive neuroscience provides an occasion for re-examining legal realism’s foundational critique of the law. Realism’s attempt to examine “the actual facts of judicial behavior” and to pursue a “scientific description and prediction of judicial behavior” appears to be a suitable vehicle for considering the relevance of cognitive neuroscience for legal theory. Cognitive neuroscience has provided convincing evidence for rejecting the traditional bifurcation between ...


Visualizing Probabilistic Proof, Enrique Guerra-Pujol Nov 2014

Visualizing Probabilistic Proof, Enrique Guerra-Pujol

Washington University Jurisprudence Review

The author revisits the Blue Bus Problem, a famous thought-experiment in law involving probabilistic proof, and presents Bayesian solutions to different versions of the blue bus hypothetical. In addition, the author expresses his solutions in standard and visual formats, that is, in terms of probabilities and natural frequencies.


Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong Nov 2014

Bringing Guns To A Gun Fight: Why The Adversarial System Is Best Served By A Policy Compelling Attorneys To Ethically Mine For Metadata, Justin Fong

Washington University Jurisprudence Review

No abstract provided.


Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack Nov 2014

Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack

Washington University Jurisprudence Review

No abstract provided.


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii Jan 2014

Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii

Washington University Jurisprudence Review

No abstract provided.


Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron Jan 2014

Natural Law And Bona Fide Discrimination: The Evolving Understanding Of Sex, Gender, And Transgender Identity In Employment, Kylie Byron

Washington University Jurisprudence Review

No abstract provided.


Media Influence In The Ghailani Trial: Have We Seen This Before? The Ever-Growing Importance Of An Independent Judiciary, Michael Perich Jan 2012

Media Influence In The Ghailani Trial: Have We Seen This Before? The Ever-Growing Importance Of An Independent Judiciary, Michael Perich

Washington University Jurisprudence Review

This Note will demonstrate that the extensive media coverage in the Ghailaini trial affected the final decision reached in the case. Using the attitudinal model of judicial decision making as a lens, I will demonstrate that the judge‘s decision was ultimately influenced by a variety of external factors. Specifically, this is because the media, rather than the courts, seemed to decide the ultimate outcome. The possibility that outside factors swayed the decisions of Judge Kaplan calls into question the independence of the judiciary, which ultimately affects the sense of justice created by Ghailani‘s prosecution. To look at the ...


The Mismeasurement Of Legal Pragmatism, Douglas Lind Jan 2012

The Mismeasurement Of Legal Pragmatism, Douglas Lind

Washington University Jurisprudence Review

No abstract provided.


Legislative Supremacy, Kenneth Ward Jan 2012

Legislative Supremacy, Kenneth Ward

Washington University Jurisprudence Review

This essay develops an institutional perspective to consider limitations on judicial authority. Rather than assume that judicial decisions put an end to disagreements about what the Constitution means, this perspective focuses on the political contests that occur after judges make disputed interpretations of constitutional law. This perspective shows that scholars both exaggerate the role of judicial review in enforcing constitutional limits and underestimate the political instability that follows from difficulty in challenging controversial judicial holdings. Together, these claims are the beginning of an argument defending a form of legislative supremacy that would allow Congress and the President to override judicial ...