Jurisprudence Commons^™

Empathy And Reasoning In Context: Thinking About Anti-Gay Bullying, Kris Franklin

Articles & Chapters

“Empathy” has negative connotations for many legal theorists, who may conceive of it as subjective, lacking in intellectual rigor, and emphasizing sensitivity over reason. Even those legal scholars who have embraced the importance of empathy in legal work have emphasized its affective dimensions: pointing out that empathy is central to human relations and motivations, and is therefore a crucial lawyering skill. This paper builds on social science literature that identifies both cognitive and affective dimensions to empathy, and recasts empathy as in part a central component to higher-order thinking in law. It draws examples from empathetic reasoning in foundational cases …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Seek Justice, Not Just Deportation: How To Improve Prosecutorial Discretion In Immigration Law, Erin B. Corcoran

Law Faculty Scholarship

Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there are eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency. This Article suggests a remedy – that the immigration prosecutor’s role should redefined …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

Ineffective Assistance Of Counsel Before "Powell V. Alabama": Lessons From History For The Future Of The Right To Counsel, Sara Mayeux

Vanderbilt Law School Faculty Publications

In the first Part of this Essay, I outline the common law agency rule that precluded reversal of a judgment on the basis of counsel negligence. While this rule was developed in civil litigation, state judges also applied it in criminal appeals. In many states, judges continued to apply the rule strictly through the 1920S or even later.35 However, from the 188os through the 1920s, some state judges moved toward a more flexible application of the rule in criminal cases. Though judges still recited the traditional rule that counsel negligence could not be grounds for a new trial, they now …

Splits In The Rock: The Conflicting Interpretations Of The Seminole Rock Deference Doctrine By The U.S. Courts Of Appeals, Kevin O. Leske

Faculty Scholarship

No abstract provided.

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today.

Robert Pickton is thought to have murdered almost 50 of …

Toward A Jurisprudence Of Drug Regulation, Matthew Herder

Articles, Book Chapters, & Popular Press

Efforts to foster transparency in biopharmaceutical regulation are well underway: drug manufacturers are, for example, legally required to register clinical trials and share research results in the United States and Europe. Recently, the policy conversation has shifted toward the disclosure of clinical trial data, not just trial designs and basic results. Here, I argue that clinical trial registration and disclosure of clinical trial data are necessary but insufficient. There is also a need to ensure that regulatory decisions that flow from clinical trials — whether positive (i.e. product approvals) or negative (i.e. abandoned products, product refusals, and withdrawals) — are …

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Articles

No abstract provided.

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

Pragmatic Liberalism: The Outlook Of The Dead, Justin Desautels-Stein

Publications

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that "law in the books" had drifted too far from the "law in action." This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and …

Deciding To Intervene, Anna Spain

Publications

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …

The Return Of Constitutional Federalism, Logan E. Sawyer Iii

Scholarly Works

This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of …

Pringle And The Nature Of Legal Reasoning, Paul Craig

Articles by Maurer Faculty

The Pringle judgment generated significant academic comment, concerning all aspects of the case. It raises, as will be seen, broader issues as to the nature of legal reasoning and the role played therein by text and background purpose or teleology.

Gunnar Beck is very critical of the CJEU, castigating it for reasoning that is said to be absurd, and accusing it of crossing the line between legal reasoning and political judgment. He is also critical of much academic analysis of the case, contending that this was too uncritical of the Court's judgment, and contending also that the interpretation of the …

Rethinking Domestic Violence, Rethinking Violence, Aya Gruber

Publications

No abstract provided.

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …