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Full-Text Articles in Jurisprudence
Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan
Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan
Working Paper Series
Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …
Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian
Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian
Working Paper Series
Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …
The Prose And The Passion, Penelope J. Pether
The Prose And The Passion, Penelope J. Pether
Working Paper Series
This essay takes the late Robert Cover's insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch's filmic satire on the Australian takings clause and the landmark Native …
Jesus’ Legal Theory—A Rabbinic Interpretation, Chaim Saiman
Jesus’ Legal Theory—A Rabbinic Interpretation, Chaim Saiman
Working Paper Series
This article locates the ancient debates between Jesus and the Talmudic rabbis within the discourse of contemporary legal theory. By engaging in a comparative reading of both Gospel and rabbinic texts, I show how Jesus and his rabbinic interlocutors sparred over questions we now conceptualize as the central concerns of jurisprudence. Whereas the rabbis approach theological, ethical and moral issues through an analytical, lawyerly interpretation of a dense network of legal rules, Jesus openly questions whether law is the appropriate medium to structure social relationships and resolve interpersonal conflicts. Through an examination of Talmudic sources, this paper argues the controversies …
Interpreting Immunity, Chaim Saiman
Interpreting Immunity, Chaim Saiman
Working Paper Series
This paper offers an examination and critique of the Supreme Court’s doctrine of qualified immunity—the immunity from constitutional tort liability granted to government officials in cases in which the tort was not “clearly established” by prior case law. Currently, courts must engage in a two-pronged inquiry: first, whether the official’s conduct was unconstitutional, and second, whether the unconstitutionality was clearly established. This paper argues that while the first question presents a standard case of common law interpretation and analysis, the second inquiry forces courts to approach the body of constitutional tort law as if it were a legislated code. However, …
Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan
Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan
Working Paper Series
The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They …
A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan
A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan
Working Paper Series
A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation Enhancing Review, Gregory P. Magarian
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation Enhancing Review, Gregory P. Magarian
Working Paper Series
No abstract provided.