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Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor of Constitutional Law 2022 Wayne State University Law School

Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

Robert Cover's metaphor of law as a bridge to an imagined future emphasizes the forward-facing character of law. But this is often obscured by law's backward-looking practice. The pathologies of contemporary judicial methodologies such as textualism distort the meaning and operation of law. Law has a distinctive temporal structure—an ontology—that defines it as a social institution. It knits together past, present, purpose, and projected future into a demand for action. Neglect one element of the complex dynamic and the bridge to an imagined future becomes what Václav Havel describes as “a bridge of excuses.” Law lives ...


A Model For Analyzing And Grading The Quality Of Scientific Authorities Presented To State Legislative Committees, Rose Tempowski, Maxine Lintern, Jill Molloy, Sarah L. Cooper 2021 University of St. Thomas, Minnesota

A Model For Analyzing And Grading The Quality Of Scientific Authorities Presented To State Legislative Committees, Rose Tempowski, Maxine Lintern, Jill Molloy, Sarah L. Cooper

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Is Compulsory Detention And Involuntary Treatment Of Mental Health Patients Always A Breach Of Human Rights?, Oluwatemilorun Adenipekun 2021 University of St. Thomas, Minnesota

Is Compulsory Detention And Involuntary Treatment Of Mental Health Patients Always A Breach Of Human Rights?, Oluwatemilorun Adenipekun

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Neurolaw: Brain-Computer Interfaces, Nadine Liv 2021 University of St. Thomas, Minnesota

Neurolaw: Brain-Computer Interfaces, Nadine Liv

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Competence To Stand Trial Assessment: Practice-Based Views On The Role Of Neuroscience, John T. Philipsborn, Melissa Hamilton 2021 University of St. Thomas, Minnesota

Competence To Stand Trial Assessment: Practice-Based Views On The Role Of Neuroscience, John T. Philipsborn, Melissa Hamilton

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


An Update On Gambling Disorder, Neuroscience, And The Law, Stacey A. Tovino 2021 University of St. Thomas, Minnesota

An Update On Gambling Disorder, Neuroscience, And The Law, Stacey A. Tovino

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Revelatory Nature Of Covid-19 Compassionate Release In An Age Of Mass Incarceration, Crime Victim Rights, And Mental Health Reform, Jennifer Brobst 2021 University of St. Thomas, Minnesota

The Revelatory Nature Of Covid-19 Compassionate Release In An Age Of Mass Incarceration, Crime Victim Rights, And Mental Health Reform, Jennifer Brobst

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Toward A Definition Of "Neurolaw", Francis X. Shen 2021 University of St. Thomas, Minnesota

Toward A Definition Of "Neurolaw", Francis X. Shen

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Neuroscience Of Free Will, Adina L. Roskies 2021 University of St. Thomas, Minnesota

The Neuroscience Of Free Will, Adina L. Roskies

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Neuroscience And The Law, Robert M. Sapolsky 2021 University of St. Thomas, Minnesota

Neuroscience And The Law, Robert M. Sapolsky

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


State Of Mind, State Of Law: Introduction To The Neuroscience And The Law Symposium, Dr. Charles J. Reid, Jr. 2021 University of St. Thomas, Minnesota

State Of Mind, State Of Law: Introduction To The Neuroscience And The Law Symposium, Dr. Charles J. Reid, Jr.

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Revocation And Retribution, Jacob Schuman 2021 University of Washington School of Law

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust ...


Addressing The Harms Of Pornography, Gillian Allison 2021 University of Nebraska - Lincoln

Addressing The Harms Of Pornography, Gillian Allison

Honors Theses, University of Nebraska-Lincoln

Within this paper I look at the existing philosophical work on pornography, from scholars like Catherine MacKinnon, Ronald Dworkin, and Rae Langton to show the current state of the pornography debate that I intend to enter by presenting my own argument about the morality of pornography. I argue that while pornography is harmful, these harms are best resolved through increased sexual education and the popularization and production of more inclusive pornography. The harms pornography causes are so great because pornography is where a lot of people learn about sex. Pornography was never designed to depict an average sexual experience. If ...


Mechanical Turk Jurisprudence, Shlomo Klapper 2021 Brooklyn Law School

Mechanical Turk Jurisprudence, Shlomo Klapper

Brooklyn Law Review

This paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency.


Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum 2021 Brooklyn Law School

Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum

Brooklyn Law Review

Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of ...


Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel 2021 Brooklyn Law School

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

Brooklyn Law Review

Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of ...


What Counts As Data?, Anya Bernstein 2021 Brooklyn Law School

What Counts As Data?, Anya Bernstein

Brooklyn Law Review

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in ...


Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail 2021 Brooklyn Law School

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will ...


Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert 2021 Brooklyn Law School

Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert

Brooklyn Law Review

Corpus linguistic tools promise to make determinations of the ordinary meaning (OM) of a word or phrase in a statute more objective, replicable, and transparent. However, significant questions remain as to how corpora may best be employed in the process of determining OM. In this paper, we argue that objectivity, replicability, and transparency are bolstered when legal practitioners take a hypothesis testing approach to determining ordinary meaning. In this approach, the corpus (a large collection of authentic texts) is treated as a sample of data which the practitioner may use to draw inductive inferences about the meaning of the term ...


The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb 2021 University of Pennsylvania Carey Law School

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby ...


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