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Washington University Law Review

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Full-Text Articles in Jurisprudence

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi Jan 2018

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi

Washington University Law Review

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 ...


The Limits Of Second Amendment Originalism And The Constitutional Case For Gun Control, Lawrence Rosenthal Jan 2015

The Limits Of Second Amendment Originalism And The Constitutional Case For Gun Control, Lawrence Rosenthal

Washington University Law Review

The Supreme Court’s 2008 ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), reshaped decades of Second Amendment precedent and jurisprudence. Using a strictly originalist methodology, the Court in Heller appeared to embrace a largely unqualified right of every person to possess and carry any firearm in common civilian use. Heller seemed to promise the dawn of Second Amendment originalism unencumbered by the nonoriginalist balancing tests and standards of scrutiny common in other areas of constitutional law, but lacking any grounding in the original meaning of the Constitution’s text.

Nevertheless, in Heller’s wake, the ...


The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall Jan 2014

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Washington University Law Review

No abstract provided.


The Constitutional Hall Pass: Rethinking The Gap In § 1983 Liability That Public Schools Have Enjoyed Since Deshaney, Jeff Sanford Jan 2014

The Constitutional Hall Pass: Rethinking The Gap In § 1983 Liability That Public Schools Have Enjoyed Since Deshaney, Jeff Sanford

Washington University Law Review

No abstract provided.


Toward A Critical Corporate Law Pedagogy And Scholarship, André D. P. Cummings, Steven A. Ramirez, Cheryl L. Wade Jan 2014

Toward A Critical Corporate Law Pedagogy And Scholarship, André D. P. Cummings, Steven A. Ramirez, Cheryl L. Wade

Washington University Law Review

No abstract provided.


Court-Mandated Story Time: The Victim Narrative In U.S. Asylum Law, Jessica Mayo Jan 2012

Court-Mandated Story Time: The Victim Narrative In U.S. Asylum Law, Jessica Mayo

Washington University Law Review

No abstract provided.


Theorizing Mental Health Courts, E. Lea Johnston Jan 2012

Theorizing Mental Health Courts, E. Lea Johnston

Washington University Law Review

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the ...


The Japanese Constitution As Law And The Legitimacy Of The Supreme Court's Constitutional Decisions: A Response To Matsui, Craig Martin Jan 2011

The Japanese Constitution As Law And The Legitimacy Of The Supreme Court's Constitutional Decisions: A Response To Matsui, Craig Martin

Washington University Law Review

The Article focuses on the author's comments to the article of Professor Shigenori Matsui about the conservative jurisprudence of the Japanese Supreme Court. It outlines the conduct of the Japanese Supreme Court as well as the legitimacy of its constitutional decisions. It describes an approach in the application of proportionality principle in the judicial review of fundamental constitutional rights.


Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman Jan 2011

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Washington University Law Review

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the ...


Judicialization Of Politics And The Japanese Supreme Court, Tokujin Matsudaira Jan 2011

Judicialization Of Politics And The Japanese Supreme Court, Tokujin Matsudaira

Washington University Law Review

The Article focuses on the author's comments to the article of Professor Shigenori Matsui which stresses the conservatism of the Japanese Supreme Court. It outlines the reluctance of the Japanese Supreme Court to judicialize politics through constitutional adjudication. It highlights the standards of judicial review which have been adopted from the German conceptual jurisprudence.


Toward A Reality-Based Constitutional Theory, Andrew Coan Jan 2011

Toward A Reality-Based Constitutional Theory, Andrew Coan

Washington University Law Review

Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of many others as well. Indeed, much of normative constitutional theory as it is presently practiced resembles a recreational debating society more than a serious effort to improve the functioning of a massively complex modern society. If constitutional theory is to live up to its aspirations, a new reality-based approach is urgently needed. This brief ...


Purging Contempt: Eliminating The Distinction Between Civil And Criminal Contempt, Paul A. Grote Jan 2011

Purging Contempt: Eliminating The Distinction Between Civil And Criminal Contempt, Paul A. Grote

Washington University Law Review

The Article examines the current state of the law of contempt on state and federal law in the U.S. in 2011. It presents an overview of the law of contempt and major developments of jurisprudence in the Supreme Court that impact the distinction between criminal and civil contempt. It discusses the International Union, United Mine Workers v. Bagwell, a case in the Supreme Court on the distinction between criminal and civil contempt.


Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui Jan 2011

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

Washington University Law Review

The Article explores the development of a conservative constitutional jurisprudence by the Japanese Supreme Court. It describes the process and the power of judicial review in the country. It stresses the reluctance of Japanese judges to consider the Constitution of Japan as a source of positive law to be enforced by the judiciary.


Is There A Law Instinct?, Michael D. Guttentag Jan 2009

Is There A Law Instinct?, Michael D. Guttentag

Washington University Law Review

The widely held view is that legal systems develop in response to purposeful efforts to achieve economic, political, or social objectives. An alternative view is that reliance on legal systems to organize social activity is an integral part of human nature, just as language and morality now appear to be directly shaped by innate predispositions. This Article formalizes and presents evidence in support of the claim that humans innately turn to legal systems to organize social behavior.


Docketology, District Courts, And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey R. Lidicker Jan 2007

Docketology, District Courts, And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey R. Lidicker

Washington University Law Review

Empirical legal scholars have traditionally modeled trial court judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. To test such views, we collected data from a thousand cases in four different jurisdictions. We recorded information about every judicial action over each case’s life, ranging from the demographic characteristics, workload, and experience of the writing judge; to information about the case, including its jurisdictional basis, complexity, attorney characteristics, and motivating legal theory; to information about the individual orders themselves, including the relevant procedural posture and the winning party ...


Arguments Against Marriage Equality: Commemorating & Reconstructing Loving V. Virginia, Tucker Culbertson Jan 2007

Arguments Against Marriage Equality: Commemorating & Reconstructing Loving V. Virginia, Tucker Culbertson

Washington University Law Review

The year 2007 marked the fortieth anniversary of Loving v. Virginia, in which the Supreme Court denounced antimiscegenation law and policy. I argue here that Loving was wrongly decided. I argue against the fundamental right to marriage declared in Loving, and offer alternative interpretations of the harms and rights at issue in the case.


Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson Jan 2006

Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson

Washington University Law Review

This Article argues that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility. Examining considerable evidence from the late eighteenth century, the Article argues that the Nobility Clauses were not limited to the prohibition of certain distinctive titles, such as “duke” or “earl,” but had a substantive content that included a prohibition on all hereditary privileges with respect to state institutions. The Article places special emphasis on the dispute surrounding the formation of the Society of the Cincinnati, a hereditary organization formed by officers of the Continental Army. This Society was repeatedly denounced by ...


Semiotic Disobedience, Sonia K. Katyal Jan 2006

Semiotic Disobedience, Sonia K. Katyal

Washington University Law Review

Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term “semiotic democracy” to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media. A semiotic democracy enables the audience, to a varying degree, to “resist,” “subvert,” and “recode” certain cultural symbols to express meanings that are different from the ones intended by their creators, thereby empowering consumers, rather than producers. In this Article, I seek to introduce another framework to supplement Fiske’s important metaphor: the phenomenon of “semiotic disobedience.” Three contemporary cultural moments ...


The Scope And Jurisprudence Of The Investment Management Regulation, Tamar Frankel Jan 2005

The Scope And Jurisprudence Of The Investment Management Regulation, Tamar Frankel

Washington University Law Review

This Article reviews three periods of investment company regulation by the Securities and Exchange Commission (“Commission”). It focuses on the period of 1975 to 2000 in which the Commission granted exemptions on conditions, thus deregulating and reregulating, case-by-case and finally codifying the exemptions in an exemptive rule. The Article analyzes this form of rule-making and compares it to prosecution, settlements, and initial rule-making that typifies the recent years. The Article concludes that the common law method of legislation, especially when it involves a “bargain” between the regulators and law-abiding regulated institutions who wish to innovate, is likely to lead to ...


On Discovering Doctrine: “Justice” In Contract Agreement, Peter A. Alces Jan 2005

On Discovering Doctrine: “Justice” In Contract Agreement, Peter A. Alces

Washington University Law Review

I pursue here what might be termed “doctrinal jurisprudence”: Study of the way facts (including rules) become legal doctrine, specifically here how idiosyncratic perceptions concerning “justice” facts support the development of contract agreement doctrine. This Article investigates the relationship between the way we encounter data (including laws, and specifically a contract law) and what we may conclude about the Law, as doctrine, that emerges from that encounter.


Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, Spencer Weber Waller Jan 2004

Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, Spencer Weber Waller

Washington University Law Review

We propose to go beyond the common law origins of the infield fly rule and do what the author chose not to do: namely, explore the different spaces for an infield fly rule from the point of view of the great jurisprudential movements of the last hundred years. In so doing we conclude (i) that post-modern jurisprudence strongly suggests that the infield fly rule was far more socially constructed and historically contingent than previously acknowledged, and (ii) that it is much more difficult to be clever, funny, and insightful about law and baseball than it appears.


Advocacy And Rhetoric Vs. Scholarship And Evidence In The Debate Over Contingency Fees: A Reply To Professor Brickman, Herbert M. Kritzer Jan 2004

Advocacy And Rhetoric Vs. Scholarship And Evidence In The Debate Over Contingency Fees: A Reply To Professor Brickman, Herbert M. Kritzer

Washington University Law Review

In December 2001 I received a telephone call from a lawyer at a firm representing Baxter International, Inc. At that time, Baxter was facing lawsuits over a number of dialysis-related deaths that had occurred in Europe. Apparently dialysis filters manufactured at a Baxter plant in Sweden had been contaminated by a processing chemical resulting in adverse consequences when used with dialysis machines. Baxter had settled death claims involving ten Spanish patients who had died (for $289,000 each), but was facing claims in as many as another 40 cases. American contingency-fee lawyers had begun to contact families in Europe and ...


The Modern Corporation And Campaign Finance: Incorporating Corporate Governance Analysis Into First Amendment Jurisprudence, Thomas W. Joo Jan 2001

The Modern Corporation And Campaign Finance: Incorporating Corporate Governance Analysis Into First Amendment Jurisprudence, Thomas W. Joo

Washington University Law Review

This Article argues that the First Amendment analysis of corporate campaign finance regulations, such as those in Senate Bill 27, should recognize the institutional peculiarities of business corporations. Courts have sometimes treated business corporations as if they were identical to individuals for constitutional purposes. But political spending by corporations should be distinguished from the political spending of individuals (and from that by labor unions and nonprofit organizations). Despite the tendency to treat corporations like individuals, courts have at other times upheld special restrictions on corporations based on the naked assertion that states have special power to regulate corporations. The First ...


Value Pluralism In Legal Ethics, W. Bradley Wendel Jan 2000

Value Pluralism In Legal Ethics, W. Bradley Wendel

Washington University Law Review

My claim in this Article is that the foundational normative values of lawyering are substantively plural and, in many cases, incommensurable. By plural I mean that the ends served by the practice of lawyering are fundamentally diverse, and are therefore valued in different ways. Lawyers promote multiple worthwhile goals, including not only preserving individual liberty, speaking truth to power, showing mercy, and resisting oppression, but also enhancing order and stability in opposition to the “ill-considered passions” of democracy, aligning individual action with the public good, and shaping disputes for resolution by particular institutions such as courts and agencies. The claim ...


The New Legal Process: Games People Play And The Quest For Legitimate Judicial Decision Making, Ronald J. Krotoszynski Jr. Jan 1999

The New Legal Process: Games People Play And The Quest For Legitimate Judicial Decision Making, Ronald J. Krotoszynski Jr.

Washington University Law Review

In this Article, I will argue in favor of a new legal process jurisprudence, analogizing the legitimacy of such an approach to the process theory that undergirds the legitimacy of contemporary athletics. In Part I, the Article describes the balkanization of contemporary jurisprudence into increasingly specialized sects. Part II examines the importance of process to contemporary athletic contests and explores the relationship of process to the legitimacy of the outcomes in those contests. In Part III, the Article completes the circle by arguing that the legitimizing effect of process plainly manifested in the context of athletics, whether at the little ...


The Jeffersonian Myth In Supreme Court Sedition Jurisprudence, Michael P. Downey Jan 1998

The Jeffersonian Myth In Supreme Court Sedition Jurisprudence, Michael P. Downey

Washington University Law Review

No abstract provided.


Fighting For Truth, Justice, And The Asymmetrical Way, Barbara J. Flagg, Katherine Goldwasser Jan 1998

Fighting For Truth, Justice, And The Asymmetrical Way, Barbara J. Flagg, Katherine Goldwasser

Washington University Law Review

For many, symmetry in law enjoys nearly the same status as mom, baseball, and apple pie: it is of the essence of the American way of life. Law would not be law as we know it without the requirement of evenhandedness; justice as we envision her is blindfolded, so as not to see who stands before her. Nevertheless, in the course of our careers (such as they are) in legal academia, the two of us have from time to time proposed the adoption of asymmetrical legal doctrines. We are quite certain that asymmetry is not only tolerable in certain circumstances ...


Desperately Seeking Science, Francis J. Mootz Iii Jan 1995

Desperately Seeking Science, Francis J. Mootz Iii

Washington University Law Review

In this Article I offer a lawyer's view of what law and linguistics interdisciplinary studies might mean for legal practice, as well as a legal theorist's view of what importance they may hold for jurisprudence. I do not pretend to have more than cursory knowledge about linguistics, and so my remarks about what linguistics scholars might gain from an interdisciplinary exchange necessarily will be brief and general.


The Theories Of Federal Habeas Corpus, Evan Tsen Lee Jan 1994

The Theories Of Federal Habeas Corpus, Evan Tsen Lee

Washington University Law Review

This Article makes two principal arguments. First, the best interpretation of the federal habeas corpus statute would not embrace any theory to the exclusion of all others. To some degree, the Court has had trouble settling on a theory of habeas because the theories under consideration are oversimple. What makes the most sense is a hybrid approach to habeas jurisdiction. This hybrid theory would hold that federal habeas relief is justified whenever: (1) state courts have failed to accord the petitioner's constitutional claims a full and fair hearing; (2) the petitioner has made a colorable showing of innocence and ...


Justice Holmes's Philosophy, Sheldon M. Novick Jan 1992

Justice Holmes's Philosophy, Sheldon M. Novick

Washington University Law Review

In my biography of Justice Holmes it seemed proper to let him have his effects. But explanation also has its part to play, if only below decks; so while Holmes lightly touches the helm, we may now trudge down to the engine room and have a look at the machinery.