Jurisprudence Commons^™

Stepification, Mitchell Chervu Johnston

Northwestern University Law Review

Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.

This Article provides the first historical and normative account of this phenomenon—which …

No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle

Donald L. Beschle

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those …

No More Tiers? Proportionality As An Alternative To Multiple Levels Of Scrutiny In Individual Rights Cases, Donald L. Beschle

Pace Law Review

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

All Things In Proportion? American Rights Doctrine And The Problem Of Balancing, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard

Steve Sheppard

Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.

The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …

Agenda: Natural Resource Development In Indian Country, University Of Colorado Boulder. Natural Resources Law Center

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Charles F. Wilkinson, Lawrence J. MacDonnell and Richard B. Collins.

Indian reservations constitute about 2.5% of all land in the country and 5% of all land in the American West. During the last two decades, Indian natural resources issues have moved to the forefront as tribal governments have dramatically expanded their regulatory programs, judicial systems. and resource development activities. This major symposium will address current developments and assess likely future directions in the areas of tribal, federal, and state regulation; tribal-state intergovernmental agreements; financing; mineral …

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Publications

No abstract provided.