Jurisprudence Commons^™

Response: Metaphor And Meaning In Trawling For Herring, Colin Starger

All Faculty Scholarship

In this essay responding to Professor Jennifer Laurin’s essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, I advance Laurin’s project of recovering the exclusionary rule’s lost lineage through a critical reflection upon her doctrinal metaphors. Specifically, I parse the jurisprudential significance of Laurin’s idea of “trawling” in order to understand Herring v. United States and show how this metaphor successfully builds upon a second water-based metaphor animating Laurin’s analysis — the “hydraulics” of borrowing and convergence. By attending to both Laurin’s specific exclusionary rule arguments and to how Laurin’s conceptualization of “hydraulics” extends Professors Tebbe and Tsai’s constitutional …

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Pushing The Limits Of Global Governance: Trading Rights, Censorship And Wto Jurisprudence - A Commentary On The China-Publications Case, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

Resolving The Qualified Immunity Dilemma: Constitutional Tort Claims For Nominal Damages, James E. Pfander

Faculty Working Papers

Scholars have criticized the Court's qualified immunity decision in Pearson v. Callahan on the ground that it may lead to stagnation in the judicial elaboration of constitutional norms. Under current law, officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless the plaintiff can persuade the court that the conduct in question violated clearly established law. Pearson permits the lower courts to dismiss on the basis of legal uncertainty; it no longer requires the courts to address the merits of the constitutional question. This essay suggests that constitutional tort claimants should be permitted to avoid …

The Deep Seabed: The Laws Of Nature And Nature’S Manganese Nodules, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Introduction To The Iachr Report On Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Taiawagi Helton

American Indian Law Review

No abstract provided.

Precedent And Justice, William D. Bader, David R. Cleveland

Law Faculty Publications

Precedent is the cornerstone of common law method. It is the core mechanism by which the common law reaches just outcomes. Through creation and application of precedent, common law seeks to produce justice. The appellate courts' practice of issuing unpublished, non-precedential opinions has generated considerable discussion about the value of precedent, but that debate has centered on pragmatic and formalistic values. This essay argues that the practice of issuing non-precedential opinions does more than offend constitutional dictates and present pragmatic problems to the appellate system; abandoning precedent undermines justice itself. Issuance of the vast majority of decisions as nonprecedential tears …

Her Choice, Her Problem: How Having A Choice Can Diminish Family Solidarity, Richard Stith

Law Faculty Publications

This Article explores a little-noticed dimension of abortion and assisted suicide (or voluntary euthanasia): how choosing to reject those options can have a negative impact on the legally authorized choosers. Women who refuse abortion may be blamed for their choice by boyfriends, neighbors, employers, and others. Similarly, infirm or dying persons may find family and other caregivers upset by their refusal to agree to assisted suicide when voluntary death seems the sensible option. Finally, the author questions whether a life chosen as an option can ever have the dignity of a life simply accepted, i.e., whether the child a mother …

Security Council Resolution 1973 On Libya: A Moment Of Legal & Moral Clarity, Paul Williams, Colleen Popken

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Pushing The Limits Of Global Governance: Trading Rights, Censorship And Wto Jurisprudence -- A Commentary On The China-Publications Case, Julia Ya Qin

Law Faculty Research Publications

For decades, China has maintained State import monopoly in cultural products. The opaque State trading operations ensure a maximum level of flexibility and efficacy in the government censorship of imports. The WTO judiciary held in the China-Publicationscase that this practice is inconsistent with China's trading rights commitments under its Accession Protocol and cannot be justified by the public morals exception of the General Agreement on Tariffs and Trade. To comply with the WTO ruling, China must restructure its censorship regime, which it apparently is not prepared to do. This article analyses the implications of the WTO decision and provides a …

Law00520 Philosophy Of Law, 3rd Edition, Anne Schillmoller

Anne Schillmoller

Philosophy, not jurisprudence Note that this is not a ‘jurisprudence’ unit. The reasons why will be discussed in detail in topic 1. Briefly, jurisprudence approaches questions about law from an ‘internal’ or ‘inside’ perspective, that is, one which seeks a conceptual basis for law from within law itself.This unit, however, aims to situate ideas about law and justice within a broader range of philosophical contexts. While traditional jurisprudence provides insights into particular theoretical movements within Anglo-Australian law, it fails to interrogatebroader philosophical frameworks or ‘external’ perspectives which inform thisjurisprudence. It is these broader frameworks which are the central concern of …

Disasters, Relief, And Neglect: The Duty To Accept Humanitarian Assistance And The Work Of The International Law Commission, J.Benton Heath

J.Benton Heath

In the wake of several large-scale natural disasters, such as the 2008 cyclone in Myanmar, some scholars and diplomats have argued that states should be under a duty to accept humanitarian assistance. This paper discusses the circumstances under which states should be required to admit foreign or international aid. I first develop a principled framework based in existing human rights law, while arguing against efforts to expand the "responsibility to protect" to cover natural and technological disasters. Then the paper surveys previous efforts to articulate the duty of states to accept humanitarian aid, and analyzes these provisions in terms of …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Victor D. Quintanilla

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Understanding California Nonclaim Statutes And Statutes Of Limitations, Steven J. Andre

Steven J. Andre

Article explores problems involving limitations upon when suits may be brought to pursue claims against estates in California.

Paul And The Origins Of Christianity, Steven J. Andre

Steven J. Andre

The article studies the tremendously influential effect of one individual upon the origins of the Christian religion. It is an exploration of the origins of Paul’s thinking and his role in the development of the early church. It considers Paul’s unique background and why that provided him special access to audiences and means to spread his message. It traces Paul’s interactions with the Nazorean sect and the philosophical and political sources that served to produce a new religion premised upon Judaic and mystical concepts made palatable to a Gentile audience by Paul’s special innovations. In addition, it discusses the scholarly …

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

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 …

The Rule Of Law In Global Governance: Its Normative Construction, Function And Import, Gianluigi Palombella

Gianluigi Palombella

What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse ‘formats’, and the challenge of the “global administrative law” theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence,and can cause content-dependent assessments to develop, without supporting self-closure or monistic …

La Democracia Deliberativa A Debate, Leonardo García Jaramillo

Leonardo García Jaramillo

No abstract provided.

American Legal Realism: Sound And Fury Signifying Nothing?, Wouter H. De Been

Wouter H. de Been

No abstract provided.

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Psychopathy And Culpability: How Responsible Is The Psychopath For Criminal Wrongdoing?, Reid G. Fontaine Jd, Phd

Reid G. Fontaine

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative, that …

Contract Law: Trends And Shifts In 2010, Dr. Yehuda Adar

Yehuda Adar Dr.

-This Article is in Hebrew- This paper presents an overview of some of the main developments in the general body of contract law in Israel during the 2009-2010 law-year and examines their possible impact on the rights of contracting parties. The author claims that these developments reflect a general pattern that characterized Israeli contract law in recent decades: On the one hand, a continuous, step-by-step progress is observed in numerous cases in which the Supreme Court introduced minor changes into existing rules or made an effort to clarify and improve the existing doctrine. Such developments are seen, for example, in …

Restitution, Compensation, Accumulation Of Remedies And Freedom Of Contract (An Analysis Of Supreme Court Civil Appeal No. 4630/04, Rendered 13.12.2006), Dr. Yehuda Adar, Dr. Moshe Gelbard

Yehuda Adar Dr.

- This article is in Hebrew- This article examines focal issues in the law of remedies, in light of the Supreme Court judgment in the case of Kanyonin Nechasim uVinyan Ltd. v. Beney Ya'acov (2006). The case involved a contract for the sale of land. The contract empowered the seller, in case of termination following a fundamental breach by the buyer, to keep certain amounts of money paid under the contract and, in addition, to demand liquidated damages for the same breach. The main issue concerned the right of the seller, who terminated the contract and regained possession of the …

The Reform Of The Standard Contracts Statute – A Critical Commentary, Dr. Yehuda Adar, Dr. Moshe Gelbard

Yehuda Adar Dr.

-This article is in Hebrew-

Lobbying And The Democratic Process, Moshe Cohen-Eliya, Yoav Hammer

Yoav Hammer

No abstract provided.

Distributive Justice Before The Eighteenth Century: The Right Of Necessity, Siegfried Van Duffel, Dennis Yap

Siegfried Van Duffel

Until recently, few people would have doubted that the idea of distributive justice is old, indeed ancient. Several authors have now challenged this assumption. Most prominently, Samuel Fleischacker argued that distributive justice originates in the eighteenth century. If accurate, this would upset much of what we have taken for granted about an important part of the history of Western political thought. However, the thesis is manifestly flawed. And since that it has already proven influential, it is important to set the record straight. We will focus on the principle of extreme necessity, developed in twelfth and thirteenth century canon law, …

Law In High Heels: Performativity, Alterity, And Aesthetics, Monica Lopez Lerma

Monica Lopez Lerma

Pedro Almodovar's High Heels (the original Spanish title, Tacones Lejanos, literally means "distant heels") is a 1991 postmodern film that celebrates performance, fluidity, and fragmentation as ways of being in and understanding the world. In a generic combination of melodrama, comedy, musical, and film noir, High Heels tells the story of a turbulent mother-daughter relationship, and a judge's criminal investigation following the murder of the daughter's husband (who also happens to be the mother's former lover). In recent years, Almodovar's film has received the attention of Orit Kamir, a law-and-film feminist scholar who opens up a refreshing line of inquiry. …

The Promise And Paradox Of Max Weber's Legal Sociology: The "Categories Of Legal Thought" As Types Of Meaningful Action And The Persistence Of The Problem Of Judicial Legisaltion, Faisal Chaudhry

Faisal Chaudhry

Unsurpassed in its ambition and historical scope, Max Weber's legal sociology centers around the four "categories of legal thought" that follow from his distinction between formal and substantive modes of rationality and irrationality in the conduct of lawfinding and lawmaking activity. At the same time, Weber's general sociology is built around four ideal types of possible meaningful conduct by individual actors, ranging from the instrumentally rational to the affective. Despite its visibility, the lack of meaningful connection Weber makes between these two categorical schemes has never adequately been remedied or even explained by his inheritors. This article seeks to do …