Jurisprudence Commons^™

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Barry Cushman

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings

Brett W Hastings

The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the …

Holmes, Cardozo, And The Legal Realists: Early Incarnations Of Legal Pragmatism And Enterprise Liability, Edmund Ursin

San Diego Law Review

The theory of enterprise liability is associated with the tort lawmaking of the liberal California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This Article explains that early incarnations of each can be found in the works of four giants in American law: Justice Oliver Wendell Holmes, Judge—later Justice—Benjamin Cardozo, and the Legal Realists Leon Green and Karl Llewellyn. As will be seen, these scholars and judges shared a common view of the lawmaking role of courts. Stated simply, this shared view was that judges are lawmakers and policy …

Natural Law And The Ninth Amendment, Thomas E. Towe

Pepperdine Law Review

No abstract provided.

Originalism And The Necessary And Proper Clause, John T. Valauri

John T. Valauri

This article analyzes a largely unacknowledged and, therefore, unsolved problem in constitutional theory and doctrine—the problem of multiplicity of meanings (i.e., encountering multiple conflicting meanings in practice when your doctrine or theory postulates just one). It does this by examining and comparing the debate over the meaning of the Necessary and Proper Clause in constitutional doctrine and the New Originalism’s notion of original public meaning in constitutional theory in order to help us get beyond the false and misleading assumptions underlying and motivating the myth of unitary meaning. It contrasts the role of the public and the express (as in …

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

Thompson V. Oklahoma: Debating The Constitutionality Of Juvenile Executions, Susan M. Simmons

Pepperdine Law Review

No abstract provided.

United States V. Kozminski: On The Threshold Of Involuntary Servitude , Kenneth T. Koonce Jr.

Pepperdine Law Review

No abstract provided.

Thornburgh V. Abbott: Slamming The Prison Gates On Constitutional Rights, Megan M. Mcdonald

Pepperdine Law Review

No abstract provided.

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

National Treasury Employees Union V. Von Raab—Will The War Against Drugs Abrogate Constitutional Guarantees?, Alyssa C. Westover

Pepperdine Law Review

No abstract provided.

Texas V. Johnson: The Constitutional Protection Of Flag Desecration, Patricia Lofton

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie

All Faculty Scholarship

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …

Judicial Independence: New Challenges In Established Nations, Martin Shapiro

Indiana Journal of Global Legal Studies

Because courts are both conflict-resolving and lawmaking bodies, they should be both independent and accountable. This paradox of incidence and accountability cannot be resolved but only addressed by various and shifting pragmatic accommodations between independence and accountability. Prosecutors, trial courts, appeals courts, and constitutional courts are each subject to differing consideration in arriving at such accommodations.

Moreover, courts, as courts of law, are not independent but are agents of statutory and constitutional lawmakers. Excessive emphasis on judicial independence creates the danger that authoritarian regimes may achieve a cloak of legitimacy for their laws by having them enforced by independent judiciaries. …

A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein

Publications

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Special Report: Kosovo After The Icj Opinion, Introduction, Ronald A. Brand

Articles

On October 22-25, 2012, judges, government officials, and scholars from Kosovo and the United States gathered at the University of Pittsburgh for a conference on “Kosovo after the ICJ Opinion.” The conference was organized by the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law, and the University of Prishtina Faculty of Law. It was co-sponsored by the Ministry of Justice, Kosovo; the Ministry of Foreign Affairs, Kosovo; the Forum for Civic Initiatives, Kosovo; the American Society of International Law (ASIL); and the Center for Russian and Eastern European Studies at the University of Pittsburgh …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.