Jurisprudence Commons^™

Contract, Tort, And Individual Responsibility: An Analytic Framework, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

A Mirror For The Magistrate, Paul Campos

Publications

No abstract provided.

Writing For Judges, Pierre Schlag

Publications

No abstract provided.

Nurturing The Impulse For Justice, Lynne Henderson

Scholarly Works

No abstract provided.

Notes For A Consistent And Meaningful Sixth Amendment, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Pre-Figuration And Evaluation, Pierre Schlag

Publications

In this response to Professor Rubin, Professor Schlag argues that a prescriptive theory of evaluation does not free an evaluator from the bias inherent in his own pre-figurations. On the contrary, the belief that better evaluative criteria will advance the cause of fairer evaluation is itself an effect of flawed and unrationalized pre-figurations of conventional legal thought. Professor Schlag argues that the evaluation question and its attendant disputes arise from a more significant development--the unraveling of the dominant paradigm of legal thought, the decomposition of normative legal thought.

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems has dominated the legal academy in recent years. One recent study found that law and economics "for several decades appears to have pervaded about one quarter of scholarship in elite law reviews," and that figure may seriously

understate the theory's influence. A number of justifiably well regarded scholarly journals devote themselves almost exclusively to economic analysis of law, and the subject is now a regular part of law school curricula.' Perhaps most importantly, law and economics is a pervasive and influential presence in informal academic discussions. Even legal …

Against Constitutional Theory, Paul Campos

Publications

No abstract provided.

Post-Modern Hearsay Reform: The Importance Of Complexity, Christopher B. Mueller

Publications

No abstract provided.

Postmodern Constitutionalism As Materialism, Francis J. Mootz Iii

Scholarly Works

Professor J.M. Balkin’s recent essay in Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balin’s thesis that a postmodern constitutionalism …

Tort Law As A Comparative Institution, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

State Ethical Codes And Federal Practice: Emerging Conflicts And Suggestions For Reform, Stephen B. Burbank

All Faculty Scholarship

The standards for resolving putative conflicts between federal laws are not always clear, and neither for that matter is the standard for determining what constitutes a federal law capable of superseding effect. The technique of setting federal norms of professional conduct on a decentralized basis by borrowing or incorporating state norms is increasingly troublesome to the extent that the borrowed state norms are disuniform and that they are being put to multiple remedial purposes. Federal legislation preempting state law of professional conduct is conceivable but hardly likely, particularly as the norms are pressed into duty for purposes other than professional …

The Jurisprudence Of Jane Eyre, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Hobbes, Formalism, And Corrective Justice, Anita L. Allen, Maria H. Morales

All Faculty Scholarship

No abstract provided.

Public Values And Corporate Fiduciary Law, William W. Bratton

All Faculty Scholarship

No abstract provided.

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …

Is There A Natural Law Right To Privacy?, Ralph F. Gaebler

Articles by Maurer Faculty

No abstract provided.

The Federal Rules Of Evidence After Sixteen Years -- The Effect Of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee On The Rules Of Evidence, And Suggestions For Selective Revision Of The Rules, Aviva A. Orenstein, Edward R. Becker

Articles by Maurer Faculty

No abstract provided.

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

Murdering The Spirit: Racism, Rights, And Commerce, Robin West

Georgetown Law Faculty Publications and Other Works

Patricia Williams' The Alchemy of Race and Rights: The Diary of a Law Professor, is an eloquent, profoundly original, and often brilliant collection of interdisciplinary essays and stories concerning the impact of racism and poverty on the human spirit; the historic and continuing role of law and legal institutions in defining, facilitating, and perpetuating those harms; and the possibilities and dangers imminent in the attempt to use law to effect a remedy for them. This is a book that we should celebrate: it reminds us that books are occasionally very, very important, that reading can be transformative, and that writing …

The Last Emperor?, Allan C. Hutchinson

Articles & Book Chapters

No abstract provided.

The Myth Of Retributive Justice, Brian Slattery

Articles & Book Chapters

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to …

With Liberty And Justice For Whom? The Recent Evangelical Debate Over Capitalism (Book Review), Thomas L. Shaffer

Journal Articles

Those who for scholarly or journalistic convenience aggregate hundreds of Christian denominations into four or five "movements" put the radical Christian pacifist Jim Wallis (of Sojourners magazine) and Dr. Jerry Falwell, founder of the Moral Majority, in one theological category. They are both evangelicals, heirs of Calvinism and the Radical Reformation, both practitioners of "conservative Protestant orthodoxy," both believers in the fundamental authority of the Bible.

And, because both of them, and thousands of Christians who follow one or both of them, are trying to respond to the criticism that evangelicalism (or "fundamentalism") neglects social and economic issues, they are …

Tribe's Judicious Feminism, Anita L. Allen

All Faculty Scholarship

No abstract provided.

What's Left?, Guyora Binder

Journal Articles

Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic …

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Law Faculty Articles and Essays

The authors provide varying opinions on the Second Amendment.

The World In Our Courts, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …