Jurisprudence Commons^™

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

The Living Rules Of Evidence, G. Alexander Nunn

Faculty Scholarship

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …

Settled Law, G. Alexander Nunn, Alan M. Trammell

Faculty Scholarship

“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful …

Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray

Faculty Scholarship

No abstract provided.

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib

Faculty Scholarship

How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if …

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Sign Or Die: The Threat Of Imminent Physical Harm And The Doctrine Of Duress In Contract Law, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels

Faculty Scholarship

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …

James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner

Faculty Scholarship

This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in …

Originalism Without Text, Stephen E. Sachs

Faculty Scholarship

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

Originalism’S Bite, William Baude, Stephen E. Sachs

Faculty Scholarship

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Truth And Legitimacy (In Courts), Kenneth S. Klein

Faculty Scholarship

This Article draws upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as Supreme Court decisions, to develop an articulation of the meaning, role, and importance of truth in courts. It is frequently articulated that trials are a search for truth. But as insiders to the judicial system know, if this is so then it is a meaning of truth that differs what truth means in any other context. And exposing this definitional dissonance in turn exposes that the legitimacy of the courts rests on …

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

The Means Principle, Larry Alexander

Faculty Scholarship

Michael Moore believes there are deontological constraints on actors’ pursuit of good consequences. He believes these constraints are best conceived of as agent-relative prohibitions such as “you must not intentionally kill, batter, rape, steal, etc.” I, joined in recent years by Kimberly Ferzan, believe that the best interpretation of deontological constraints — the interpretation that best accounts for our intuitions about certain stock cases — is that they are constraints on the causal means by which good consequences may be achieved. We believe those constraints can be unified under a single deontological principle, what we call the “means principle.” It …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.