Jurisprudence Commons^™

Symposium: Commodification, Intellectual Property And The Quilters Of Gee's Bend, Victoria F. Phillips

Victoria Phillips

No abstract provided.

The Radical Feminist Defense Of Individualism, Cynthia V. Ward

Cynthia V. Ward

No abstract provided.

A Kinder, Gentler Liberalism? Visions Of Empathy In Feminist And Communitarian Literature, Cynthia V. Ward

Cynthia V. Ward

No abstract provided.

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

Thomas J. McSweeney

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 …

The Unruliness Of Rules, Peter A. Alces

Peter A. Alces

No abstract provided.

Regret And Contract "Science", Peter A. Alces

Peter A. Alces

No abstract provided.

Heller, Mcdonald, And Murder: Testing The More Guns = More Murder Thesis, Don B. Kates, Carlisle Moody

Carlisle Moody

No abstract provided.

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Jesse H Choper

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Alexander Tsesis

No abstract provided.

Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan

Barry Sullivan

No abstract provided.

Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki

Nadia N. Sawicki

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to …

Legal Personhood For Artificial Intelligence, Tyler Jaynes

Tyler Jaynes

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.

The "Guarantee" Clause, Ryan C. Williams

Ryan Williams

Article IV’s command that “the United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate …

Forensic Constitutional Interpretation, Brian F. Havel

Brian Havel

No abstract provided.

The Life Of An Unknown Assassin: Leon Czolgosz And The Death Of William Mckinley, Cary Federman

Cary Federman

The purpose of this essay is to examine the discourses that surrounded the life of Leon Czolgosz, the assassin of President William McKinley. The gaps in Czolgosz’s life, his peculiar silences, his poor health and the ambiguity and thinness of his confession, rather than taken as instances of mental and physical distress, have, instead, been understood as signs of a revolutionary anarchistic assassin. Czolgosz is an expression of a cultural tradition in somatic form. I argue that the discursive construction of criminality, already present in the late nineteenth century within the medical and human sciences, is what shaped Czolgosz’s life …

Organizations As Evil Structures, Cary Federman, Dave Holmes

Cary Federman

Nursing practice in forensic psychiatry opens new horizons in nursing. This complex, professional, nursing practice involves the coupling of two contradictory socioprofessional mandates: to punish and to provide care. The purpose of this chapter is to present nursing practice in a disciplinary setting as a problem of governance. A Foucauldian perspective allows us to understand the way forensic psychiatric nursing is involved in the governance of mentally ill criminals through a vast array of power techniques (sovereign, disciplinary, and pastoral), which posit nurses as “subjects of power.” These nurses are also “objects of power” in that nursing practice is constrained …

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Cary Federman

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Randy D. Gordon

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Glynn Lunney

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

Rhetorical Neutrality: Colorblindness, Frederick Douglass, And Inverted Critical Race Theory, Cedric Merlin Powell

Cedric M. Powell

Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O'Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways.

Should Robots Prosecute And Defend?, Stephen E. Henderson

Stephen E Henderson

When Should The First Amendment Protect Judges From Their Unethical Speech?, Lynne H. Rambo

Lynne H. Rambo

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, …

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Nancy Welsh

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle

Donald L. Beschle

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those …

Weird Science: The Empircial Study Of Legal Writing/Describing Law’S Enterprise: Moving From Theory To Research Question To Research Design And Implementation, Brian Larson

Brian Larson

Institutional Conditions Of Contemporary Legal Thought, Paulo D. Barrozo

Paulo Barrozo

No abstract provided.

How We Built A Scholarly Working Group Devoted To Classical Legal Rhetoric (And How You Can Do The Same Thing With Other Legal Writing Subjects), Brian Larson, Kirsten K. Davis, Lori D. Johnson, Ted Becker, Susan E. Provenzano

Brian Larson

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Robert B. Ahdieh

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …