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Jurisprudence Commons

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Articles 1 - 2 of 2

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 ...