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Jurisprudence Commons

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Jurisprudence

2013

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Articles 1 - 30 of 122

Full-Text Articles in Jurisprudence

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud Dec 2013

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud

Gordon D Ballingrud

. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …


Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones Nov 2013

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 Nov 2013

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 …


What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller Nov 2013

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …


Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna Nov 2013

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Erik Luna

Not available.


Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh Nov 2013

Whitehead's Metaphysics And The Law: A Dialogue, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.


The Jurisprudence Of John Howard Yoder, Thomas L. Shaffer Nov 2013

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 Nov 2013

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 Nov 2013

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 Nov 2013

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Pilgrim Law, Robert E. Rodes Nov 2013

Pilgrim Law, Robert E. Rodes

Robert Rodes

No abstract provided.


On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes Nov 2013

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 Nov 2013

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 Nov 2013

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 Nov 2013

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 Nov 2013

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 …


The Commons, Capitalism, And The Constitution, George Skouras Oct 2013

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.


Law, Belief, And Bildung: The Education Of Harry Edwards, Brian C. Murchison Oct 2013

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 Oct 2013

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.


Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings Oct 2013

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 …


Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim Oct 2013

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 Sep 2013

The Case Against Brilliance, Daniel A. Farber

Daniel A Farber

No abstract provided.


Integrating Public Choice And Public Law: A Reply To Debow And Lee, Daniel A. Farber, Philip P. Frickey Sep 2013

Integrating Public Choice And Public Law: A Reply To Debow And Lee, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

No abstract provided.


Islamic Flextime, Liaquat Ali Khan Aug 2013

Islamic Flextime, Liaquat Ali Khan

Ali Khan

Islamic flextime is derived from a divine decree that convenience is the organizing principle of cosmic construction. Rigid temporal frameworks restrict freedom and may even impede human happiness, social harmony, and economic efficiency. This essay explains the foundation of Islamic temporality. Islam teaches that human beings can use temporality but they have no control over time, just as they can benefit from sunlight but cannot conquer the sun. A flexible notion of temporality facilitates the performance of obligations, without repudiating the core concepts of punctuality and time commitments. Islamic flextime is an accommodation principle that respects individual needs and mitigates …


"Standing" In The Shadow Of Erie: Federalism In The Balance In Hollingsworth V. Perry, Glenn Koppel Aug 2013

"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 Aug 2013

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 Aug 2013

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 …


Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman Aug 2013

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …


Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson Aug 2013

Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson

Robert R Robinson

Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …


The Battle For The Soul Of International Shoe, Eric H. Schepard Aug 2013

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 …