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Top-Down Or From The Ground?: A Practical Perspective On Reforming The Field Of Children And The Law, Cheryl Bratt 2018 Boston College Law School

Top-Down Or From The Ground?: A Practical Perspective On Reforming The Field Of Children And The Law, Cheryl Bratt

Boston College Law School Faculty Papers

Children get a raw deal in this country at the federal, state, and family levels. The law indisputably treats children in many limiting and paternalistic ways, typically designating them as objects to be controlled either by their parents or the government—two parties perpetually duking it out for authority. In their article, The New Law of the Child, 127 Yale L. J. 1448 (2018), Anne C. Dailey and Laura A. Rosenbury envision overhauling constitutional law to better promote children’s broader interests. Theirs is thus a top-down approach to change: by extending the Constitution to safeguard more robust rights for ...


The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, 2018 Brigham Young University Law School

The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany

BYU Law Review

By offering an international and interdisciplinary point of comparison, Hamann and Vogel demonstrate that current American forays into corpus-based legal scholarship reflect only a small sliver of the full range of possibilities for such research. This Comment considers several key branching points that may lie ahead, as the nascent literature begins to mature. In particular, the Comment examines two vexing ambiguities in the corpus-linguistic agenda: the first centers on the ambiguous meaning of legal “empiricism”; the second, on the ambiguous relationship between words and actions. To achieve its full potential, legal corpus linguistics will need to move beyond mere description ...


The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, 2018 Brigham Young University Law School

The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics

BYU Law Review

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics ...


Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, 2018 Brigham Young University Law School

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record

BYU Law Review

This Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. 2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of ...


Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis, 2018 Brigham Young University Law School

Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis

BYU Law Review

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so, it must more fully incorporate principles from survey and content-analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility, and accuracy in the important quest to determine the meaning of the law. This Article highlights some of those principles to provide a best- practices guide to those seeking to perform law and corpus linguistic analysis.


The Dictionary As A Specialized Corpus, 2018 Brigham Young University Law School

The Dictionary As A Specialized Corpus

BYU Law Review

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word ...


Datamining The Meaning(S) Of Progress, 2018 Brigham Young University Law School

Datamining The Meaning(S) Of Progress

BYU Law Review

No abstract provided.


Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, 2018 Brigham Young University Law School

Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany

BYU Law Review

German legal thinking is renowned for its hair-splittingly sophisticated dogmatism. Yet, some of its other contributions to research are frequently overlooked, both at home and abroad. Two such secondary streams recently coalesced into a new corpus-based research approach to legal practice: Empirical legal research (which had already developed in Germany by 1913) and research on language and law (following German pragmatist philosopher Ludwig Wittgenstein’s work of 1953). This Article introduces both research traditions in their current German incarnations (Evidence-Based Jurisprudence and Legal Linguistics) and shows how three common features—their pragmatist observation of social practices, their interest in dissecting ...


Ordinary Meaning And Corpus Linguistics, 2018 Brigham Young University Law School

Ordinary Meaning And Corpus Linguistics

BYU Law Review

This Article discusses how corpus analysis, and similar empirically based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to underscore the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Because ordinary meaning must in some sense be ...


A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics, 2018 Brigham Young University Law School

A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics

BYU Law Review

Corpus linguistics is more than just a new tool for legal interpretation. Work in corpus linguistics has generated new ways of thinking about word meaning and about the interpretation of words in context. These insights challenge the assumptions that lawyers and judges generally make about words and their meaning. Although the words that make up a sentence are generally regarded as the basic units of meaning, corpus analysis has shown that in many cases, the meaning of a word as it is used in a given context is a function, not of the word by itself, but of the word ...


Corpus Linguistics As A Tool In Legal Interpretation, 2018 Brigham Young University Law School

Corpus Linguistics As A Tool In Legal Interpretation

BYU Law Review

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas R. Lee and Stephen C. Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when ...


Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis, 2018 Brigham Young University Law School

Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis

BYU Law Review

No abstract provided.


Remedies Symposium: Upstairs Downstairs: Morales-Santana And The Right To A Remedy In Comparative Law, Jerfi Uzman 2018 The University of Akron

Remedies Symposium: Upstairs Downstairs: Morales-Santana And The Right To A Remedy In Comparative Law, Jerfi Uzman

ConLawNOW

The Supreme Court’s ruling in Sessions v. Morales-Santana has refueled a classic debate about constitutional remedies in equal protection cases. The ways in which courts should respond to underinclusive legislation is a question that is fundamental to the idea of constitutional rights. Not just in the United States but throughout the Western world, courts struggle with the dilemma raised in Morales-Santana. In this article, I seek to broaden the debate by putting Morales-Santana in a comparative perspective. Drawing from the case law of the U.S. Supreme Court, the Court of Justice of the European Union, the Supreme Court ...


Impact Of 2001 - 2016 Supreme Court Establishment Clause Cases, Nicole Cumming 2018 Western Michigan University

Impact Of 2001 - 2016 Supreme Court Establishment Clause Cases, Nicole Cumming

Honors Theses

This study will look at United States Supreme Court Establishment Clause cases from 2001-2016. During those 16 years, the Court decided 1,276 cases. Only 10 of those cases dealt with the establishment clause.

At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, which existed in many other countries at the time of America's founding. This idea has become vital to the values Americans hold dear. Throughout history, religious freedom and tolerance have been celebrated, and most of that is due to the Establishment Clause. However ...


Originalism’S Claims And Their Implications, André LeDuc 2018 University of Arkansas, Fayetteville

Originalism’S Claims And Their Implications, André Leduc

Arkansas Law Review

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications—and the implications of the critics’ alternatives—figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge. First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with ...


Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen 2018 Duke Law

Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen

Duke Journal of Constitutional Law & Public Policy Sidebar

Masterpiece Cakeshop v. Colorado Civil Rights Commission is the most important same-sex rights case since Obergefell v. Hodges and will determine if businesses and individuals have a First Amendment right to refuse serving gay weddings against their conscience. In this case, Jack Phillips, owner of Masterpiece Cakeshop, refused to create a custom cake for Charlie Craig and David Mullins to celebrate their wedding because it was against his Christian beliefs. The Supreme Court will decide whether the First Amendment gave Phillips this right of refusal or whether Colorado’s anti-discrimination laws will compel him to serve same-sex weddings. This commentary ...


Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman 2018 University of Georgia

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.


Kratom Crackdown: How The Dea Abused Its Emergency Scheduling Authority Under The Controlled Substances Act, Olivia Castillo 2018 University of Miami Law School

Kratom Crackdown: How The Dea Abused Its Emergency Scheduling Authority Under The Controlled Substances Act, Olivia Castillo

University of Miami Law Review

The Drug Enforcement Administration wields tremendous power at scheduling a new drug or substance on an emergency basis under the Controlled Substances Act. The DEA newly leveled this power at a plant—kratom—with the potential to curb the menacing opioid epidemic in North America. This unprecedented effort has generated considerable controversy. Many individuals remonstrated the agency’s action, especially those facing life-threatening hardships because of the opioid crisis. Members of Congress also took a stand against the DEA’s unrivalled move to schedule kratom, suggesting that the agency had abused the emergency scheduling authority delegated by the legislative branch ...


The Use Of Military Force And The Constitution, John M. Greabe 2018 University of New Hampshire School of Law

The Use Of Military Force And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last week, for the second time since becoming president, President Donald Trump ordered a military strike on Syria without seeking or obtaining authorization from Congress. Both strikes were responsive to chemical-weapons attacks that, American intelligence analysts say, the Syrian government launched against its own people.

Many believe that these forceful responses to horrific war crimes involving banned weapons were morally justified. But were they constitutional?


The Property Question.Pdf, William A. Edmundson 2018 Georgia State University College of Law

The Property Question.Pdf, William A. Edmundson

William A. Edmundson

The “property question” is the constitutional question whether a society’s basic resources are to be publicly or privately owned; that is, whether these basic resources are to be available to private owners, perhaps subject to tax and regulation, or whether instead they are to be retained in joint public ownership, and managed by democratic processes.  James Madison’s approach represents a case in which prior holdings are taken for granted, and the property question itself is kept off of the political agenda.  By contrast, John Rawls approach abstracts from any actual pattern of holdings, while putting the property question ...


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