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Jurisprudence Commons

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Selected Works

2015

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Articles 1 - 21 of 21

Full-Text Articles in Jurisprudence

From Coitus To Commerce: Legal And Social Consequences Of Noncoital Reproduction, Joan Hollinger Dec 2015

From Coitus To Commerce: Legal And Social Consequences Of Noncoital Reproduction, Joan Hollinger

Joan Hollinger

No abstract provided.


What Is Positive Law, Philippe Nonet Dec 2015

What Is Positive Law, Philippe Nonet

Philippe Nonet

No abstract provided.


How Much Fuel To Add To The Fire Of Genius? Some Questions About The Repair/Reconstruction Distinction In Patent Law , Arthur Gajarsa, Evelyn Aswad, Joseph Cianfrani Dec 2015

How Much Fuel To Add To The Fire Of Genius? Some Questions About The Repair/Reconstruction Distinction In Patent Law , Arthur Gajarsa, Evelyn Aswad, Joseph Cianfrani

Evelyn Aswad

No abstract provided.


Nature And Human Equality, John Coons, Patrick Brennan Dec 2015

Nature And Human Equality, John Coons, Patrick Brennan

John Coons

No abstract provided.


Anti-Inquisitorialism, David Sklansky Dec 2015

Anti-Inquisitorialism, David Sklansky

David A Sklansky

A broad and enduring theme of Atherican jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing ...


The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi Oct 2015

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative ...


Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia Sep 2015

Theater, Law & Democracy As Living Speech: Reflections On The Work Of James Boyd White, Frank Garcia

Frank J. Garcia

Presentation at a colloquium sponsored by the Boston College Clough Center for the Study of Constitutional Democracy.


Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz Sep 2015

Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz

Daniel M Katz

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive ...


The Constitutional Rhetoric Of White Innocence Aug 2015

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of ...


Liberalism And Religion Jun 2015

Liberalism And Religion

Steven H. Shiffrin

No abstract provided.


The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin Jun 2015

The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin

Steven H. Shiffrin

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right ...


Schools Of Jurisprudence, Robert Rodes Jun 2015

Schools Of Jurisprudence, Robert Rodes

Robert Rodes

Professor Rodes defines Jurisprudence as ''the legal profession's account of what it is about.'' Since they lawyers, judges, and legislators doing their work are all looking at the same phenomenon, writers on Jurisprudence must all draw from the same limited body of material in constructing their theories. In this book, Rodes examines these materials and then classifies the various schools of Jurisprudence according to which of the materials they use and how they use them. In describing the available materials, Rodes looks first at what he calls the ''internal account'': legal work considered in itself, the definition and scope ...


Shredded Fish Redux, Robert Sanger Apr 2015

Shredded Fish Redux, Robert Sanger

Robert M. Sanger

The Yates case, in which certiorari had been granted to the United States Court of Appeals for the Eleventh Circuit had been discussed in a previous column of Criminal Justice. The article was entitled “Shredded Fish” because the sea captain in Yates was prosecuted under the document shredding provisions of the Sarbanes-Oxley Act of 2002 for destroying fish. That case has now been decided by the United States Supreme Court in Yates v. United States, on February 25, 2015. The case involves the rule of lenity as well as a discussion of overcriminalization.


Classic Problems Of Jurisprudence, Robert Rodes Apr 2015

Classic Problems Of Jurisprudence, Robert Rodes

Robert Rodes

No abstract provided.


Jurisprudence: Cases And Materials, Thomas Broden, Robert Rodes Apr 2015

Jurisprudence: Cases And Materials, Thomas Broden, Robert Rodes

Robert Rodes

The Second Edition of Jurisprudence Cases and Materials includes several new features. First, it begins with two chapters on the ancient Near Eastern, biblical, and classical origins of law and jurisprudence. Second, it offers chapters that trace the systematic development of the Anglo-American analytic canon and modern critical responses. Continental thought is incorporated along with the realist and pragmatic traditions that remain among the major American contributions to jurisprudential thought. Third, the Second Edition retains and further develops analysis of jurisprudence in the courts. The result, we think, is a book that attains unusual breadth and richness of treatment of ...


Law And Liberation, Robert Rodes Apr 2015

Law And Liberation, Robert Rodes

Robert Rodes

No abstract provided.


Science Is Not Waiting For The Courts, Robert Sanger Mar 2015

Science Is Not Waiting For The Courts, Robert Sanger

Robert M. Sanger

The Forensic Science Community and the federal government are moving far beyond the courts in an effort to improve the quality of scientific evidence and expert testimony in the courts. Major events in forensics have caused a top to bottom reconsideration of what should count as expert testimony. Last month, the National Institute of Standards and Technology (NIST) and the federal Department of Justice (DOJ) convened the first set of meetings of the Organization of Scientific Area Committees (OSAC). This is a forward-looking approach to forensic science.

The first OSAC meetings were held on February 16 and 17, 2015, at ...


The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin Feb 2015

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Emily L Sherwin

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over pleading ...


Three Arguments About War, Robert Tsai Dec 2014

Three Arguments About War, Robert Tsai

Robert L Tsai

The rise of the United States as a military power capable of mounting global warfare and subduing domestic rebellions has helped produce a corresponding shift in the language of liberal constitutionalism. Arguments invoking war have become prevalent, increasingly creative and far-reaching, and therefore an emerging threat to rule of law values. It is not only legal limits on the capacity to wage war that have been influenced by the ascendance of war-inspired discourse; seemingly unrelated areas of law have also been reshaped by talk of war, from the constitutional rules of criminal procedure to the promise of racial and sexual ...


The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. Fitzgibbon Dec 2014

The Law's Duty To Promote The Kinship System: Implications For Assisted Reproductive Techniques And For Proposed Redefinitions Of Familial Relations, Scott T. Fitzgibbon

Scott T. FitzGibbon

Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each ...


The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo Dec 2014

The Great Alliance: History, Reason, And Will In Modern Law, Paulo Barrozo

Paulo Barrozo

This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of ...