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Articles 1621 - 1650 of 9317
Full-Text Articles in Jurisprudence
Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson
Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson
Michigan Law Review
In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …
Is The First Amendment Obsolete?, Tim Wu
Is The First Amendment Obsolete?, Tim Wu
Michigan Law Review
The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.
Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …
Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson
Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson
St. Mary's Law Journal
Abstract forthcoming
Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer
Free Trade, Fair Trade, And Selective Enforcement, Timothy Meyer
Faculty Scholarship
No abstract provided.
Precedent And The Semblance Of Law, Stephen E. Sachs
Precedent And The Semblance Of Law, Stephen E. Sachs
Faculty Scholarship
Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …
Law's Evolving Emergent Phenomena: From Rules Of Social Intercourse To Rule Of Law Society, Brian Z. Tamanaha
Law's Evolving Emergent Phenomena: From Rules Of Social Intercourse To Rule Of Law Society, Brian Z. Tamanaha
Scholarship@WashULaw
Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. While these propositions might seem obvious, few works in contemporary jurisprudence build around them.
In this essay, I draw on the notion of emergence …
Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir
Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir
Law Faculty Articles and Essays
On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."
One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …
How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels
How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels
Faculty Scholarship
Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?
This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …
Arguing With Friends, William Baude, Ryan D. Doerfler
Arguing With Friends, William Baude, Ryan D. Doerfler
All Faculty Scholarship
It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.
Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …
Racial Justice And Federal Habeas Corpus As Postconviction Relief From State Convictions, Leroy Pernell
Racial Justice And Federal Habeas Corpus As Postconviction Relief From State Convictions, Leroy Pernell
Journal Publications
It is the purpose of this Article not to simply document the influence of race on our criminal system and its role in the current racial crisis of overrepresentation of minorities in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity – federal habeas corpus as a postconviction remedy. By looking first at the racial context of several “landmark” criminal justice reform decisions, this Article considers how race serves as the root of the procedural due process reform that began in earnest during the Warren Court. This Article …
The Debate That Never Should Have Been: Dworkin, Hart, And The Analytical Project, Allan C. Hutchinson
The Debate That Never Should Have Been: Dworkin, Hart, And The Analytical Project, Allan C. Hutchinson
Articles & Book Chapters
As with most other things, the fortunes of jurisprudence ebb and flow. After an extended period of scholarly dominance, the past few years have witnessed a relative decline in its significance and prominence. This is no bad thing because jurisprudence has been trapped in an increasingly narrow debate characterized by its esoteric confines and analytical ambitions-what is the nature of law? There appeared to be a brief moment when other more expansive and less restrictive options for disciplinary development seemed possible. However, any reports of the demise of analytical jurisprudence now seem premature: the posthumous publication of a dated essay …
The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse
The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse
Faculty Publications
Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …
Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner
Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner
All Faculty Scholarship
In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decisionmaking in this area. In this Article, we closely examine the Teva opinion and situate it within modern claim construction jurisprudence. Our thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction but that for unexpected reasons the …
Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin
Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin
Manuscript Collection
(The Dorothy Moser Medlin Papers are currently in processing.)
This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.
Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Commerce, Religion, And The Rule Of Law, Nathan B. Oman
Faculty Publications
The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu …
The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles
The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles
Book Chapters
No abstract provided.
The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles
The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles
Law Library Faculty Scholarship
Published as a chapter in Millennial Leadership in Libraries edited by Ashley Krenelka Chase.
Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta
Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta
Faculty Scholarship
The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …
Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar
Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar
Oklahoma Law Review
No abstract provided.
Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel
Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel
Oklahoma Law Review
No abstract provided.
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Faculty Articles
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …
The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger
The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger
Articles
On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Scott W. Howe
Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez
Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez
Stephen E Henderson
The Eleventh Circuit Dreadlocks Ban And The Implications Of Race Discrimination In The Workplace, Jacqueline Frank
The Eleventh Circuit Dreadlocks Ban And The Implications Of Race Discrimination In The Workplace, Jacqueline Frank
Barry Law Review
No abstract provided.
Toxic Impact: The Regulation Of Coal Ash And The Influence Of Big Money On Small Communities, Patricia Helman
Toxic Impact: The Regulation Of Coal Ash And The Influence Of Big Money On Small Communities, Patricia Helman
Barry Law Review
No abstract provided.
The "P" Word: Ohio Should Adopt The Uniform Premarital Agreements Act To Achieve Consistency And Uniformity In The Treatment Of Prenuptial Agreements, Jenna Christine Colucci
The "P" Word: Ohio Should Adopt The Uniform Premarital Agreements Act To Achieve Consistency And Uniformity In The Treatment Of Prenuptial Agreements, Jenna Christine Colucci
Cleveland State Law Review
Throughout the United States, courts have used inconsistent standards for the interpretation of prenuptial agreements. Under Ohio jurisprudence, courts are concerned with protecting the vulnerable spouse or the economically disadvantaged party. This legal standard acknowledges the unique relationship of the parties to the contract and will generally review the procedural and substantive components of the prenuptial agreement. Conversely, other courts are weary of interfering with the contractual freedom of the parties and will only invalidate a prenuptial agreement upon a showing of fraud, duress, or misrepresentation. The Uniform Premarital Agreement Act was drafted in 1983 to address the inconsistent treatment …
A Proposal For Fda Label Regulations And Uniform Certifications For Organic Non-Food And "Natural" Products, Allyson Bartolomeo
A Proposal For Fda Label Regulations And Uniform Certifications For Organic Non-Food And "Natural" Products, Allyson Bartolomeo
Barry Law Review
No abstract provided.
Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb
Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb
Articles
This article provides context for and examines aspects of the design process of a game for learning. Lost & Found (2017a, 2017b) is a tabletop-to-mobile game series designed to teach medieval religious legal systems, beginning with Moses Maimonides’ Mishneh Torah (1180), a cornerstone work of Jewish legal rabbinic literature. Through design narratives, the article demonstrates the complex design decisions faced by the team as they balance the needs of player engagement with learning goals. In the process the designers confront challenges in developing winstates and in working with complex resource management. The article provides insight into the pathways the team …