Jurisprudence Commons^™

Ministering (In)Justice: The Supreme Court's Misreliance On Abortion Regret In Gonzales V. Carhart, J. Shoshanna Ehrlich

Nevada Law Journal

No abstract provided.

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Does Religion Have A Role In Criminal Sentencing?, Jack B. Weinstein

Touro Law Review

No abstract provided.

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan

Working Paper Series

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Understanding Jurisprudential Approaches To Islam, Marc L. Roark

ExpressO

The United States recent deal with a United Arab Emirites Company to operate seven U.S. Ports highlights a growing tension in U.S. and Arabic commercial relations. One tension that has remained unnoticed is the role that U.S Courts play in interpreting Islamic texts when the commercial or legal outcome depends on an understanding of the religious culture. This article describes seven cases that demonstrate various approaches to this problem. This article utilizes an approach by James Boyd White, and suggests that translation or its kin transliteration can help judges in deciding Islamic legal principles.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The First Amendment, Burt Neuborne

Touro Law Review

No abstract provided.