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Arguing With Friends, William Baude, Ryan D. Doerfler 2017 University of Chicago

Arguing With Friends, William Baude, Ryan D. Doerfler

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 ...


Punctuated Equilibrium: A Model For Administrative Evolution, 44 J. Marshall L. Rev. 353 (2011), Mark C. Niles 2017 Selected Works

Punctuated Equilibrium: A Model For Administrative Evolution, 44 J. Marshall L. Rev. 353 (2011), Mark C. Niles

Mark Niles

No abstract provided.


For Legal Principles, Mitchell N. Berman 2017 University of Pennsylvania Law School

For Legal Principles, Mitchell N. Berman

Faculty Scholarship

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In ...


Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith 2017 University of Pennsylvania Law School

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

Faculty Scholarship

This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how ...


Procedural Due Process Claims, Erwin Chemerinsky 2017 Selected Works

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Creating An Anti-Corruption Norm In Africa: Critical Reflections On Legal Instrumentalization For Development, Paul D. Ocheje 2017 University of Windsor, Faculty of Law

Creating An Anti-Corruption Norm In Africa: Critical Reflections On Legal Instrumentalization For Development, Paul D. Ocheje

Law Publications

Abstract

This article reflects critically on the instrumental value of law in the anti-corruption struggle in Africa. Three questions are central to this reflection: (a) Is the instrumental use of law to achieve a developmental purpose, such as anti-corruption, defensible in theory and practice? (b) Is law necessary to, and/or adequate for, the creation of an anti-corruption norm? (c) Why do the developing countries perform so poorly in the fight against corruption in comparison with their wealthier, industrialized counterparts? While the article defends the instrumentalization of law in this regard, it argues that the African normative context of corruption ...


Revisiting Popular Action, Raúl Sánchez Gómez 2017 Universidad Pablo de Olavide

Revisiting Popular Action, Raúl Sánchez Gómez

DePaul Journal for Social Justice

No abstract provided.


Toiling In Trump's Vineyard Of Alternative Facts Lining Its Random Walk, David J. Cook 2017 DePaul University

Toiling In Trump's Vineyard Of Alternative Facts Lining Its Random Walk, David J. Cook

DePaul Journal for Social Justice

No abstract provided.


The Erosion Of Civil Rights Remedies: How Ashcroft V. Al-Kidd Altered Qualified Immunity, Madeleine Sharp 2017 DePaul University

The Erosion Of Civil Rights Remedies: How Ashcroft V. Al-Kidd Altered Qualified Immunity, Madeleine Sharp

DePaul Journal for Social Justice

No abstract provided.


Measuring “Progress” And “Regress” In Human Rights: Why We Need A Set Of Social Contract Measures To Replace Indices Of Violations And Slogans, David Lempert 2017 Independent Scholar

Measuring “Progress” And “Regress” In Human Rights: Why We Need A Set Of Social Contract Measures To Replace Indices Of Violations And Slogans, David Lempert

DePaul Journal for Social Justice

No abstract provided.


Criminal Selectivity In The United States: A History Plagued By Class & Race Bias, Valeria Vegh Weis 2017 DePaul University

Criminal Selectivity In The United States: A History Plagued By Class & Race Bias, Valeria Vegh Weis

DePaul Journal for Social Justice

No abstract provided.


Asian Americans And The Law: Sharing A Progressive Civil Rights Agenda During Uncertain Times, Harvey Gee 2017 DePaul University

Asian Americans And The Law: Sharing A Progressive Civil Rights Agenda During Uncertain Times, Harvey Gee

DePaul Journal for Social Justice

No abstract provided.


A Letter From The Editors, DePaul Journal for Social Justice Editorial Board 2017 DePaul University College of Law

A Letter From The Editors, Depaul Journal For Social Justice Editorial Board

DePaul Journal for Social Justice

No abstract provided.


Table Of Contents, 2017 DePaul University

Table Of Contents

DePaul Journal for Social Justice

No abstract provided.


Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib 2017 Fordham University School of Law

Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib

Fordham Law Review

In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in ...


Moore’S Potential, June Carbone, Naomi Cahn 2017 University of Minnesota

Moore’S Potential, June Carbone, Naomi Cahn

Fordham Law Review

Part I of this Article briefly explores the culture wars that have consumed American politics since Moore. Part II discusses Moore’s uneasy position within the conception of family as a matter of choice versus tradition. Then, to the extent that the Moore Court addressed the changing family, Part III shows how it did so by treating the extended family as a manifestation of traditional family values, not the newly emerging substantive family values that valorize delay in childbearing and financial independence. Finally, Part IV considers Moore's missed opportunities to examine the relationship between family form, race, and class.


John Moore Jr.: Moore V. City Of East Cleveland And Children’S Constitutional Arguments, Nancy E. Dowd 2017 University of Florida Fredric G. Levin College of Law

John Moore Jr.: Moore V. City Of East Cleveland And Children’S Constitutional Arguments, Nancy E. Dowd

Fordham Law Review

This Article is divided into three parts. First, I retell the story of Moore from John Jr.’s perspective and frame his potential claims. Second, I explore constitutional arguments under existing doctrine, using contemporary equal protection and substantive due process analyses. Finally, I suggest how a children’s rights perspective might be even more persuasive as a strategy for John Jr. as well as for achieving opportunity and equality on behalf of contemporary children living amid and affected by structural inequalities that impact their developmental capacity.


Sharing A House But Not A Household: Extended Families And Exclusionary Zoning Forty Years After Moore, Solangel Maldonado 2017 Seton Hall University School of Law

Sharing A House But Not A Household: Extended Families And Exclusionary Zoning Forty Years After Moore, Solangel Maldonado

Fordham Law Review

This Article proceeds in three parts. Part I briefly recounts the evolution of zoning laws and their effect on racial minorities. Next, Part II demonstrates how single-family zoning laws disproportionately exclude racial minorities from the most desirable blocks. Part II also examines how these laws economically and socially disadvantage minorities and hinder efforts to integrate neighborhoods and schools. Then, Part III uses Moore to explore potential solutions and concludes that, at minimum, zoning laws cannot exclude two-family homes that are occupied by extended family members. It also shows how Moore may support a more inclusionary approach to zoning.


Extending The Normativity Of The Extended Family: Reflections On Moore V. City Of East Cleveland, Angela Onwuachi-Willig 2017 University of California, Berkeley School of Law

Extending The Normativity Of The Extended Family: Reflections On Moore V. City Of East Cleveland, Angela Onwuachi-Willig

Fordham Law Review

Part I of this Article briefly recounts the plurality decision in Moore before analyzing Justice Brennan’s concurring opinion and detailing how the concurrence affirms, rather than deconstructs, the notion of African American deviance in families. Next, Part II specifies the ways in which Justice Brennan could have truly uplifted African American families and other families of color by identifying and explicating the strengths of extended or multigenerational family forms among people of color and by showing how such family forms can be a model, or even the model (if one must be chosen), for all families. Then, Part III ...


Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk 2017 Fordham University School of Law

Thinking Outside The Box: Reforming Commercial Discrimination Doctrine To Combat The Negative Consequences Of Ban-The-Box Legislation, Nina Kucharczyk

Fordham Law Review

This Note suggests a new approach to address the unintended consequences of ban-the-box legislation. The solution to combat unconscious discrimination during the hiring process is not to eliminate ban- the-box laws entirely; instead, lawmakers must modernize and strengthen Commercial discrimination doctrine to empower racial minorities who suspect discrimination and to ensure employers are critically analyzing their hiring processes.


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