Jurisprudence Commons^™

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Hyatt V. Franchise Tax Board Of California: Perils Of Undue Disputing Zeal And Undue Immunity For Government-Inflicted Injury, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Implementing Religious Law In Modern Nation-States: Reflections From The Catholic Tradition, Patrick Brennan

Patrick McKinley Brennan

This paper originated as an invited contribution to a symposium on "Implementing Religious Law in Contemporary Nation-States: Definitions and Challenges," sponsored by the Robbins Collection, Berkeley Hall, Boalt Hall, U.C. Berkeley, February 2014. The symposium by design brought papers speaking variously from Christian, Jewish, and Muslim perspectives into conversation. My paper proposes that the Catholic tradition of reflection on human lawmaking, even in modern nation-states, must take as its starting point the God who rules His rational creatures through higher or eternal law, where the rational creature’s participation in that higher law is what is known as the natural law. …

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Race, Law And Justice: The Rehnquist Court And The American Dilemma , Paul Butler, Richard D. Kahlenberg, Roger Pilon, Robert S. Chang, David Kairys, Jamin B. Raskin, Charles J. Cooper, Phil Tajitsu Nash, Jeffret\Y Rosen, Adrienne D. Davis, Alexandra Natapoff, Katheryn K. Russell, Angela Jordan Newton, Burton Wechsler, Mark Hager, Clarence Page, Brenda Wright, Stuart Ishimaru, Frank R. Parker, Frank H. Wu

Jamin Raskin

No abstract provided.

The (Re-) Constitution Of The Public, Gianluigi Palombella

Gianluigi Palombella

This article deals with the prospect of public law in global governance. It analyses firstly the foundations of modern public law and considers what is left of them in the global setting. Are they still holding through States’ de-centering practices, detached from the legitimating grounds of the modern ‘idea of publicness’? What is called here the duality of public law (in its State-related political and juridical strands) fades and decouples in the sphere where inherently ‘global’ legalities originate of a deracinated type: the distinctively global ‘public’ only provides a ‘suspended public law’ and politically unsaturated. The Constitution of the Public …

The Rule Of Law In Global Governance: Its Normative Construction, Function And Import, Gianluigi Palombella

Gianluigi Palombella

What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse ‘formats’, and the challenge of the “global administrative law” theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence,and can cause content-dependent assessments to develop, without supporting self-closure or monistic …

The Rule Of Law As An Institutional Ideal, Gianluigi Palombella

Gianluigi Palombella

This article aims at offering an innovative interpretation of the potentialities of the "rule of law" for the XXI Century. It goes beyond current uses and the dispute between formal and substantive conceptions, by reaching the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion, showing a special objective that the law is asked to achieve, on a legal plane, largely independent of political instrumentalism. The normative meaning is elaborated on and construed around the notions of institutional equilibrium, non domination and "duality" of …

Reasons For Justice, Rights And Future Generations, Gianluigi Palombella

Gianluigi Palombella

This article focuses on some very "fundamental threats" to future generations' leaving, and considers whether most essential interests of future persons not to be harmed can be construed as rights, and in particular as human rights, as much as present persons'. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of "disposability" and "non-disposability" principles. Finally, the article shows the reasons for separating what we owe to future persons under the challenge of those threats for humanity, i.e. a matter of justice, from our right to hand down our …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham

Michigan Journal of Race and Law

As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

Race, Law And Justice: The Rehnquist Court And The American Dilemma , Paul Butler, Richard D. Kahlenberg, Roger Pilon, Robert S. Chang, David Kairys, Jamin B. Raskin, Charles J. Cooper, Phil Tajitsu Nash, Jeffret\Y Rosen, Adrienne D. Davis, Alexandra Natapoff, Katheryn K. Russell, Angela Jordan Newton, Burton Wechsler, Mark Hager, Clarence Page, Brenda Wright, Stuart Ishimaru, Frank R. Parker, Frank H. Wu

American University Law Review

No abstract provided.

"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers

Law Faculty Scholarly Articles

Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …

Accountability To The Law, Walter F. Mondale

Touro Law Review

No abstract provided.

Causing The Conditions Of One's Own Defense: A Study In The Limits Of Theory In Criminal Law Doctrine, Paul H. Robinson

All Faculty Scholarship

One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions. It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable …