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Full-Text Articles in Jurisprudence
Law As Faith: The Personal And Unconstitutional Journey From Rule Of Law To Law Of Rulism, Stephen Durden
Law As Faith: The Personal And Unconstitutional Journey From Rule Of Law To Law Of Rulism, Stephen Durden
Stephen Durden
With the goal of eliminating personal choice, Scalia, engaging in the quintessential Rulist approach, makes the personal choice to reinterpret the “Rule of Law as the Law of Rules.” Because he applies this approach to remaking the Supreme Law of the Land into the Supreme Rules of the Land, this essay takes to task the Rulist quixotic quest to eliminate personal predilection within constitutional interpretational methodology. This essay seeks to pull back the curtain to demonstrate that (1) Scalia’s rewrite of the words and meaning of the Rule of Law and (2) the ideal of the Law of Rules hide …
I Am Textualism, Stephen Durden
I Am Textualism, Stephen Durden
Stephen Durden
This essay, consisting of merely 1100 words, satirizes textualism, particularly as applied to the Constitution. Inspired by the idea of something being all things to all people in order to win converts, the essay demonstrates that because textualism has so many different definitions that it in fact has no meaning other than the meaning given by each textualist. Each textualist embraces his or her own version of textualism. Textualists battle to define true textualism. Given the different versions of textualism, each textualist faces the Textualist Conundrum. As each textualist seeks to embraceor prove a purer form of textualism the textualist …
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden
Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden
Stephen Durden
Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to …
Partial Textualism, Stephen Durden
Partial Textualism, Stephen Durden
Stephen Durden
This Article seeks to demonstrate that plain meaning textualists do not apply plain meaning textualism to the entire Constitution. Instead, plain meaning textualists indulge their personal predilections and apply the doctrine of “partial textualism,” which selectively applies plain meaning textualism to only part of, rather than the entire, Constitution. Partial textualism destroys any possible fairness value to plain meaning textualism. Indeed, such an approach is entirely inconsistent with the goals of plain language textualism. Through examining the Takings Clause, this Article demonstrates that a plain meaning textualist will commonly apply plain meaning textualism to a part of the Constitution that …
Plain Language Textualism: Some Personal Predilections Are More Equal Than Others, Stephen Durden
Plain Language Textualism: Some Personal Predilections Are More Equal Than Others, Stephen Durden
Stephen Durden
This Article challenges the validity of plain language textualism, an allegedly superior method of constitutional interpretation based solely on the “plain language” of the Constitution. First, this Article demonstrates that, notwithstanding the ebb and flow of support for this interpretive method, both the Supreme Court and its individual Justices often seek to “plainly” define various provisions in the Constitution. What matters most to this Article is not whether any individual “plain language” interpretation of a constitutional provision seems reasonable or even best, but rather whether the use of “plain language” is consistent with the expressed and unexpressed objectives and purposes …
Sign Amortization Laws: Insight Into Precedent, Property, And Public Policy, Stephen Durden
Sign Amortization Laws: Insight Into Precedent, Property, And Public Policy, Stephen Durden
Stephen Durden
This Article will (1) briefly overview Takings Clause jurisprudence; (2) state a paradigmatic fact pattern; (3) review how the Takings Clause has been applied to sign amortization codes by the United States Supreme Court; (4) review paradigmatic cases from Florida courts and federal courts with Florida jurisdiction; (5) discuss the precedential value of these cases; (6) discuss Lingle and whether it requires an overturning of this precedent; and (7) discuss whether failure to overturn these cases serves the purpose of precedential jurisprudence.
In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden
In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden
Stephen Durden
No abstract provided.
Nude Entertainment Zoning, Stephen Durden
Nude Entertainment Zoning, Stephen Durden
Stephen Durden
Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …
The Impact Of Florida Statute 800.03 On Local Regulation Of Nude Dancing Facilities., Stephen Durden
The Impact Of Florida Statute 800.03 On Local Regulation Of Nude Dancing Facilities., Stephen Durden
Stephen Durden
Local governments throughout the country have enacted adult entertainment codes regulating, among other things, massage parlors, adult movie theaters, adult video stores and adult toy stores. Local governments have not forgotten live performances particularly nude or topless dancing. Regulations throughout the country require facilities to get licenses before they operate; require that the dancers get licenses; regulate the location of these facilities; and regulate their interiors. These regulations are often challenged, with the challenge being based on the First Amendment. The assumption behind all these cases is that the First Amendment protects nude dancing. That assumption is now unassailable but …
Litter Or Literature: Does The First Amendment Protect Littering Of Neighborhoods?, Stephen Durden
Litter Or Literature: Does The First Amendment Protect Littering Of Neighborhoods?, Stephen Durden
Stephen Durden
Pamphlets can be as simple as a single piece of paper or as voluminous as a small newspaper placed in a plastic bag. Each method of distribution engenders its own particular problems. The purpose of this Article is to examine the legal implications of pamphlet distribution, particularly distribution on residential property. Are these pamphlets litter or literature? Or, might they be called “litter-ature”--a combination of both? The first part of this Article sets forth some of the problems associated with the distribution of pamphlets, especially on residential property. The second part examines the First Amendment speech implications of distributing literature …