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Articles 1 - 30 of 89
Full-Text Articles in Jurisprudence
Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones
Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones
Brian Christopher Jones
This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.
The Virtue In Bankruptcy, Matthew Adam Bruckner
The Virtue In Bankruptcy, Matthew Adam Bruckner
Matthew Adam Bruckner
In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decision-making process—practical …
Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh
Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh
Jay Tidmarsh
No abstract provided.
The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer
The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer
Thomas L. Shaffer
No abstract provided.
Toward A Jurisprudence For The Law Office, Thomas L. Shaffer, Louis M. Brown
Toward A Jurisprudence For The Law Office, Thomas L. Shaffer, Louis M. Brown
Thomas L. Shaffer
No abstract provided.
The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer
The Christian Jurisprudence Of Robert E. Rodes Jr., Thomas L. Shaffer
Thomas L. Shaffer
No abstract provided.
Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer
Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer
Thomas L. Shaffer
No abstract provided.
Pilgrim Law, Robert E. Rodes
On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes
On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes
Robert Rodes
This article describes the origin and sources of the author's jurisprudential doctrine, and his adoption of liberation theology as a way of reconciling Sociological Jurisprudence with the philosophy of history. It argues that the pursuit of justice is eschatologically validated even though its historical fruition is problematical. It goes on to discuss the working out in legal practice of the liberationists' call for a preferential option for the poor.
On The Historical School Of Jurisprudence, Robert E. Rodes
On The Historical School Of Jurisprudence, Robert E. Rodes
Robert Rodes
Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …
Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes
Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes
Robert Rodes
This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Russell A. Miller
Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement …
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
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 …
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison
Brian C. Murchison
Not available.
The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall
The Natural Relationship Of Church And State Within The Kingdom Of Christ Based On The Encyclical Immortale Dei Of Pope Leo Xiii, Brian M. Mccall
Brian M McCall
This lecture addresses the natural relationship between Church and State and explains Catholic Social Teaching regarding the organization of civil society.
Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim
Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim
Andrew Chongseh Kim
Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …
The Case Against Brilliance, Daniel A. Farber
Integrating Public Choice And Public Law: A Reply To Debow And Lee, Daniel A. Farber, Philip P. Frickey
Integrating Public Choice And Public Law: A Reply To Debow And Lee, Daniel A. Farber, Philip P. Frickey
Daniel A Farber
No abstract provided.
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel
Glenn Koppel
Abstract “Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California Supreme Court, grants authority to …
The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer
Joe Custer
Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …
Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman
Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman
Lewis M. Wasserman
Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …
The Battle For The Soul Of International Shoe, Eric H. Schepard
The Battle For The Soul Of International Shoe, Eric H. Schepard
Eric H Schepard
In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …
Remedies Unified In Nine Verses, Caprice Roberts
Remedies Unified In Nine Verses, Caprice Roberts
Caprice L. Roberts
An original substantive poem with footnotes that makes three bold claims: (i) Remedies shapes substantive rights, (ii) the scholarly quest for a unified theory of Remedies is ill-fated, and (iii) Remedies properly reasoned will unify across borders, doctrinal and geographic.
The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton
The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton
steven J. burton
This article argues that the Constitution constrains the Supreme Court's power to overrule its constitutional precedents. It bases this argument on the Fifth Amendment's Due Process Clause and the conjunction of Marbury v. Madison, Martin v. Hunter's Lessee, Cohens v. Virginia, and the "case or controversy" limit on federal court jurisdiction.
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
Wayne McCormack
One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …
Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy
Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy
Michael H LeRoy
Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …
The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton
The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton
steven J. burton
There is a near-consensus among Supreme Court Justices and constitutional scholars that there is no significant law, and need not be a law, constraining the Court's power to overrule its constitutional precedents. This Essay/Article argues, to the contrary, that the Court's overruling power should be constitutionally constrained for essentially the same reasons that virtually every other federal government power is constrained. It proposes and defends a constitutional law of overruling.
A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz
A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz
Justin Schwartz
Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …
An All Of The Above Theory Of Legal Development, Larry A. Dimatteo
An All Of The Above Theory Of Legal Development, Larry A. Dimatteo
Larry A DiMatteo
This paper reviews different theories of legal development in order to highlight their similarities and differences. In the end, as in contract theories, no monist view of legal development possesses the explanatory power needed to understand how law has come to be and where it may take us in the future. What we do have is a foundation built on at least two millennia of legal history. The intellectual starting point for this project is Nathan Isaacs’ unfinished work on a cycle theory of legal development. His view of legal development takes issue with Henry Sumner Maine’s thesis that development …
Legal Realism As Theory Of Law, Michael S. Green
Legal Realism As Theory Of Law, Michael S. Green
Michael S. Green
No abstract provided.