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Articles 1 - 20 of 20
Full-Text Articles in Jurisprudence
Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey
Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey
Faculty Publications By Year
Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …
Joint Works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, Michael B. Landau
Joint Works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, Michael B. Landau
Faculty Publications By Year
No abstract provided.
The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall
The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall
Faculty Publications By Year
No abstract provided.
Developing A Durable Right To Health Care, Erin C. Fuse Brown
Developing A Durable Right To Health Care, Erin C. Fuse Brown
Faculty Publications By Year
The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …
The Balanced Budget Amendment: A Threat To The Constitutional Order, Neil J. Kinkopf
The Balanced Budget Amendment: A Threat To The Constitutional Order, Neil J. Kinkopf
Faculty Publications By Year
No abstract provided.
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey
Faculty Publications By Year
The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more …
Signaling And Plea Bargaining's Innocence Problem, Russell D. Covey
Signaling And Plea Bargaining's Innocence Problem, Russell D. Covey
Faculty Publications By Year
The dominant theoretical model of plea bargaining predicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an "innocence problem." Plea bargaining's innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea …
Escape From The Battle Of The Forms: Keep It Simple, Stupid, Corneill A. Stephens
Escape From The Battle Of The Forms: Keep It Simple, Stupid, Corneill A. Stephens
Faculty Publications By Year
This Article reviews the history of the "battle of the forms" issue arising when contracting parties submit conflicting terms to each other in attempting to form a contract and how courts have resolved issues arising from this, both under the original Uniform Commercial Code (UCC) Article 2 and the Revised Article 2. The author reviews the economic circumstances that gave rise to the current use of standard form contracts, such as lower transaction costs and the ability of a company to control the terms and the discretion of its personnel. He discusses how battle of the forms issues were resolved …
"Sufficient" Capacity: The Contrasting Capacity Requirements For Different Documents, Mary F. Radford, Lawrence A. Frolik
"Sufficient" Capacity: The Contrasting Capacity Requirements For Different Documents, Mary F. Radford, Lawrence A. Frolik
Faculty Publications By Year
In Anglo-American law, the concept of mental "capacity" is used to measure the degree to which an individual has the "mental ability to understand the nature and effects of one's acts" as determined by a medical or cognitive assessment of an individual's mental ability. Based on an individual's mental capacity, the law decides whether the individual had sufficient capacity to engage in the action in question. The legal concept of mental capacity, therefore, is the basis for "when a state legitimately may take action to limit an individual's rights to make decisions about his or her own person or property." …
Market Based Approaches To Environmental Preservation: To Environmental Mitigation Fees And Beyond, James C. Nicholas, Julian C. Juergensmeyer
Market Based Approaches To Environmental Preservation: To Environmental Mitigation Fees And Beyond, James C. Nicholas, Julian C. Juergensmeyer
Faculty Publications By Year
Impact fees are widely accepted and utilized across the United States as a technique to generate revenue for capital infrastructure improvements necessitated by new development. This article looks at the origination of impact fees, their legal framework, the extension of the concept towards environmental protection, and an alternative economic approach in environmental protection, “market based regulation.” Based upon techniques utilized primarily in the arenas of wetlands and air quality regulation, a concept of utilizing economic incentives for broader environmental protection is explored. Considerations of the legal framework evolved through impacts fees are then applied to possible implementation aspects of the …
The Easy Case Against Tax Simplification, Samuel A. Donaldson
The Easy Case Against Tax Simplification, Samuel A. Donaldson
Faculty Publications By Year
There is growing political momentum to simplify the Internal Revenue Code. While the federal tax laws should be no more complex than necessary, this Article demonstrates that tax complexity is not as bad as political rhetoric leads us to believe. The Article makes four arguments in support of this thesis. First, the forces comprising tax complexity are either inevitable or net beneficial, so calls for simplification are ultimately pointless. Second, the alleged harms of tax complexity are either unproven or overstated, so the need for simplification is questionable. Third, significant proposals for simplification are flawed because they either overcorrect for …
A Century Lost: The End Of The Originalism Debate, Eric J. Segall
A Century Lost: The End Of The Originalism Debate, Eric J. Segall
Faculty Publications By Year
Focuses on the originalism debate on the constitutional law of the United States. Contemporary debate; Analysis on the debate; Views an arguments on originalism.
Teaching An Old Law New Tricks: Rethinking Section 16, Ellen Taylor
Teaching An Old Law New Tricks: Rethinking Section 16, Ellen Taylor
Faculty Publications By Year
No abstract provided.
The Antinomy Of Coherence And Determinacy, William A. Edmundson
The Antinomy Of Coherence And Determinacy, William A. Edmundson
Faculty Publications By Year
Coherence and determinacy are both apparent desiderata for bodies of law and legal systems. Unfortunately, in legal systems of any complexity, increasing the degree of one invariably brings about a lessening of the other. For theories of law - such as Ronald Dworkin's - that emphasize the importance of coherence in judicial reasoning, while requiring as a condition of legitimacy that legal rights pre-exist judicial decisions, this must be an unwelcome fact.
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore
Faculty Publications By Year
No abstract provided.
Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny
Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny
Faculty Publications By Year
No abstract provided.
Re-Examining Hearsay Under The Federal Rules: Some Method For The Madness, Paul S. Milich
Re-Examining Hearsay Under The Federal Rules: Some Method For The Madness, Paul S. Milich
Faculty Publications By Year
No abstract provided.
A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark D. Cunningham
A Linguistic Analysis Of The Meanings Of "Search" In The Fourth Amendment: A Search For Common Sense, Clark D. Cunningham
Faculty Publications By Year
This article offers a new technique for analyzing and evaluating competing interpretations of a legal text and applies that technique to one of the most debated questions of modern constitutional interpretation: the meaning of "searches" in the first clause of the fourth amendment. This Technique is called the "common sense" approach because it begins with a semantic analysis of the text in terms of the sense that the key words have in everyday speech. Such analysis reveals a complex of interlocked concepts that underlies the ability of speakers to recognize meaningful uses of these words. The common sense approach then …
Prospects For Structural Reform Of The Bankruptcy System, Marjorie L. Girth
Prospects For Structural Reform Of The Bankruptcy System, Marjorie L. Girth
Faculty Publications By Year
No abstract provided.
The Common Lands Concept: A "Commons" Solution To A Common Environmental Problem, Julian C. Juergensmeyer, James Wadley
The Common Lands Concept: A "Commons" Solution To A Common Environmental Problem, Julian C. Juergensmeyer, James Wadley
Faculty Publications By Year
No abstract provided.