Going "Clear", 2019 University of Pennsylvania Law School
Going "Clear", Ryan D. Doerfler
Faculty Scholarship at Penn Law
This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words ...
If Separation Of Church And State Doesn’T Demand Separating Religion From Politics, Does Christian Doctrine Require It?, 2019 Washington and Lee University School of Law
If Separation Of Church And State Doesn’T Demand Separating Religion From Politics, Does Christian Doctrine Require It?, Samuel W. Calhoun
Washington and Lee Law Review Online
This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion From Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the appropriateness of religious arguments in the public square. Part III evaluates Wayne Barnes’s contention that Christian doctrine requires separating religion from politics.
Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, 2019 University of Maryland Francis King Carey School of Law
Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale
Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of ...
Private International Law As An Ethic Of Responsivity, 2019 Duke Law School
Private International Law As An Ethic Of Responsivity, Ralf Michaels
The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of ...
Should Robots Prosecute And Defend?, 2018 University of Oklahoma College of Law
Should Robots Prosecute And Defend?, Stephen E. Henderson
Stephen E Henderson
Principles Of Risk Imposition And The Priority Of Avoiding Harm, 2018 University of Southern California
Principles Of Risk Imposition And The Priority Of Avoiding Harm, Gregory C. Keating
University of Southern California Legal Studies Working Paper Series
Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The “safe level” standard, for example, requires the elimination of all significant risks. The “feasibility” standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the Environmental Protection and Occupational Health and Safety Agencies. You might expect them to be too well-entrenched to ...
65. Adults’ Perceptions Of Children’S Referentially Ambiguous Responses., 2018 Brock University
65. Adults’ Perceptions Of Children’S Referentially Ambiguous Responses., Breanne E. Wylie, Thomas D. Lyon, Alison M. O’Connor, Christina Lapytskaia, Angela D. Evans
Thomas D. Lyon
Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei
Master of Laws Research Papers Repository
Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...
"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, 2018 Seattle University School of Law
"Beauty Is Truth And Truth Beauty": How Intuitive Insights Shape Legal Reasoning And The Rule Of Law, Stephen M. Maurer
Seattle University Law Review
Scientists have long recognized two distinct forms of human thought. “Type 1” reasoning is unconscious, intuitive, and specializes in finding complex patterns. It is typically associated with the aesthetic emotion that John Keats called “beauty.” “Type 2” reasoning is conscious, articulable, and deductive. Scholars usually assume that legal reasoning is entirely Type 2. However, critics from Holmes to Posner have protested that unconscious and intuitive judgments are at least comparably important. This Article takes the conjecture seriously by asking what science can add to our understanding of how lawyers and judges interpret legal texts. The analysis is overdue. Humanities scholars ...
A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, 2018 University of California, Berkeley
A Life Absolutely Bare? A Reflection On Resistance By Irregular Refugees Against Fingerprinting As State Biopolitical Control In The European Union, Ziang Zhou
Claremont-UC Undergraduate Research Conference on the European Union
In a legally transitory category, irregular refugees- experience a double precariousness. They risk their lives to travel across treacherous seas to Europe for a better life. However, upon the long-awaited embarkation on the European land, they are exposed once again to the precariousness of the asylum application. They are “powerless”, “with no rights” and “to be sacrificed” as Giorgio Agamben and Hannah Arendt suggested in their respective understanding of a “bare life”, la nuda vita. In light of the administrative difficulties in managing asylum application, the European Union introduced the “Dublin Agreement”, which stipulates mandatory biometric data collection for irregular ...
Originalist Theory And Precedent: A Public Meaning Approach, 2018 Georgetown University Law Center
Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions ...
An Analysis Of St. Thomas Aquinas’S Position On The Relationship Between Justice And Legality, 2018 Singapore Management University
An Analysis Of St. Thomas Aquinas’S Position On The Relationship Between Justice And Legality, Wei Yao, Kenny Chng
Research Collection School Of Law
This paper is directed at a deep investigation of Thomas Aquinas's position on the relationship between justice and legality, a perennial debate in legal philosophy - are unjust laws laws at all? Modern natural law theorists taking contradictory positions all claim to be faithful to Aquinas's ideas on the matter. Yet, they cannot all be correct. This paper aims to discern Aquinas's true position on the matter by undertaking a detailed study of Aquinas's Treatise on Law, the broader context of the Summa Theologiae within which the Treatise is situated, and Aquinas's methodological and definitional approaches.
Are Boycotts, Shunning, And Shaming Corrupt?, Scott Altman
University of Southern California Legal Studies Working Paper Series
This article argues that boycotts, shunning, and shaming are sometimes corrupt because they create incentives that undermine important individual aims, enticing people into acting for inappropriate reasons. They harm targets by undermining belief formation, or by impeding efforts at living authentically, deterring targets from declaring their beliefs in public or from pursuing projects that they believe important. They are corrupt because they make their targets willing participants in undermining their own aims, subverting their individual ambitions not to allow money or social pressure to influence their beliefs and their most important actions. Although individuals must sometimes take responsibility for maintaining ...
The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All, 2018 Marquette University Law School
The Plot To Overthrow Genocide: State Laws Mandating Education About The Foulest Crime Of All
Marquette Law Review
This Article shines a light on a little noticed phenomenon in American law: the promulgation of ten state statutes and one state regulation, each requiring education about genocide in elementary and/or secondary schools. The mandates, adopted from 1989 through 2018, appear to be only the beginning inasmuch as in 2017 another nineteen states publicly pledged to pass such mandates as well.
The Article describes each of the existing mandates and compares them to each other, including an analysis of the laws’ respective strong and weak points. This exposition, of interest in itself, also sets the stage for proposals to ...
Self-Actualization And The Need To Create As A Limit On Copyright, 2018 University of Pennsylvania Law School
Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo
Faculty Scholarship at Penn Law
Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.
This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of ...
Owning The Land: Four Contemporary Narratives, 2018 University of Illinois College of Law
Owning The Land: Four Contemporary Narratives, Eric T. Freyfogle
Florida State University Journal of Land Use and Environmental Law
Our 1997-1998 Distinguished Lecturer authored an Essay addressing property ownership questions in view of four contemporary narratives of land ownership. This Essay discusses in turn the libertarian narrative of individual autonomy, the more traditional narrative of property focused on economic opportunity, a community-centered narrative that understands property as an evolving tool to meet community needs, and a biocentric narrative that looks to the land itself to prescribe the rules on how it can be used. This discussion begins reviewing these tales with the one that has stirred up the most controversy lately, the narrative of autonomy. It is in this ...
The History, Meaning, And Use Of The Words Justice And Judge, 2018 Texas Fifth Court of Appeals
The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright
St. Mary's Law Journal
The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge.
Although justice and ...
Anthony Kennedy: A Most Principled Justice, 2018 University of Pennsylvania Law School
Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters
Faculty Scholarship at Penn Law
After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...
Weird Science: The Empircial Study Of Legal Writing/Describing Law’S Enterprise: Moving From Theory To Research Question To Research Design And Implementation, 2018 Texas A&M University School of Law
Weird Science: The Empircial Study Of Legal Writing/Describing Law’S Enterprise: Moving From Theory To Research Question To Research Design And Implementation, Brian Larson
How We Built A Scholarly Working Group Devoted To Classical Legal Rhetoric (And How You Can Do The Same Thing With Other Legal Writing Subjects), 2018 Texas A&M University School of Law