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Minimizing Probate-Error Risk, Mark Glover
Minimizing Probate-Error Risk, Mark Glover
Faculty Articles
By prescribing the method by which courts evaluate the authenticity of wills the law of willexecution allocates probateerror risk between falsepositive outcomes and falsenegative outcomes When the court validates an inauthentic will the result is a falsepositive outcome When the court invalidates an authentic will the result is a falsenegative outcome Because falsepositive outcomes result in the admission to probate of inauthentic wills and falsenegative outcomes result in the denial of probate of genuine wills both can be characterized as probate errorsThis framework has been used to identify the problem with the conventional law of willexecution which is that it …
Measurement Of The Direct Cp Asymmetry In ¯B→Xs+Dγ Decays With A Lepton Tag, L. Pesántez Et Al
Measurement Of The Direct Cp Asymmetry In ¯B→Xs+Dγ Decays With A Lepton Tag, L. Pesántez Et Al
Faculty Articles
We report the measurement of the direct CP asymmetry in the radiative ¯B→Xs+dγ decay using a data sample of (772±11)×106 B¯B pairs collected at the Υ(4S) resonance with the Belle detector at the KEKB asymmetric-energy e+e− collider. The CP asymmetry is measured as a function of the photon energy threshold. For E∗γ≥2.1 GeV, where E∗γ is the photon energy in the center-of-mass frame, we obtain ACP(¯B→Xs+dγ)=(2.2±3.9±0.9)%, consistent with the standard model prediction.
A Taxonomy Of Testamentary Intent, Mark Glover
A Taxonomy Of Testamentary Intent, Mark Glover
Faculty Articles
Testamentary intent is consistently heralded as the cornerstone of a will Moreover judges and scholars explain that the decedent's intent should guide probate courts as they supervise the distribution of the decedent's estate But despite the importance of testamentary intent within the law of wills a clear and consistent testamentary intent doctrine has failed to develop Courts frequently espouse the significance of testamentary intent without explaining what testamentary intent is and when they do give more detail regarding the meaning of testamentary intent their explanations are often vague and at times confusing and contradictory Likewise legal scholars have done little …
The Cowboy Code Meets The Smash Mouth Truth: Meditations On Worker Incivility, Michael C. Duff
The Cowboy Code Meets The Smash Mouth Truth: Meditations On Worker Incivility, Michael C. Duff
Faculty Articles
This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world Workers must resist forces promoting vulnerability and internalize a steely and cleareyed ethic of selfdefense in response to the smash mouth truth of this challenging new environment Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as ÔÇ£incivilityÔÇØ The law ' and I focus in the essay on …
The Aba Got It Right: Veterans Need Our Help, Patricia E. Roberts
The Aba Got It Right: Veterans Need Our Help, Patricia E. Roberts
Faculty Articles
No abstract provided.
The Transformation Of An Academic Discipline: Law Professors In The Past And Future (Or Toy Story Too), Stephen Matthew Feldman
The Transformation Of An Academic Discipline: Law Professors In The Past And Future (Or Toy Story Too), Stephen Matthew Feldman
Faculty Articles
Since the postCivil War era law professors have perceived themselves first and foremost as lawyers For the most part during that time we were lawyers teaching students about the law and about how to practice law But we were not merely lawyers teaching apprentices We were law professors mostly in universityaffiliated law schools who wrote scholarly articles and books Even so our scholarship revolved around our perception of ourselves as lawyers We wrote to reform and to improve the law Through our scholarship we directly participated in the legal system in legal and judicial practices by advising lawyers and judges …
Do The Right Thing: Understanding The Interest-Convergence Thesis, Stephen Matthew Feldman
Do The Right Thing: Understanding The Interest-Convergence Thesis, Stephen Matthew Feldman
Faculty Articles
Professor Derrick Bell was one of the most influential constitutional scholars of the last fifty years His insights spurred civil rights scholars as well as thinkers in other fields One of his most important legacies is the interestconvergence thesis which asserts that historically African Americans gained social justice primarily when their interests converged with the interests of the white majority In a recently published article Rethinking the InterestConvergence Thesis Professor Justin Driver calls this legacy into question This Essay defends the interestconvergence thesis from Driver's attack It argues that the analytical flaws he identifies only exist by dint of his …
The Persistence Of Power And The Struggle For Dialogic Standards In Postmodern Constitutional Jurisprudence: Michelman, Habermas, And Civic Republicanism, Stephen Matthew Feldman
The Persistence Of Power And The Struggle For Dialogic Standards In Postmodern Constitutional Jurisprudence: Michelman, Habermas, And Civic Republicanism, Stephen Matthew Feldman
Faculty Articles
Since the 1950s most constitutional scholars have presumed that the American political system is pluralistic with autonomous individuals struggling in the legislative arena to maximize the satisfaction of their preexisting private interests The new republicans reject these presumptions and insist that constitutional jurisprudence must recognize the potential for virtuous citizens to engage in a political dialogue that generates public values and identifies a common good Frank I Michelman has pioneered this revival by confronting one of the most troubling and persistent difficulties of civic republican thought the likelihood that the political dialogue will be closed to segments of the community …
Exposing Sunstein's Naked Preferences, Stephen Matthew Feldman
Exposing Sunstein's Naked Preferences, Stephen Matthew Feldman
Faculty Articles
In Naked Preferences and the Constitution and subsequent articles Professor Cass R Sunstein argues that the Constitution requires legislatures to pursue public values or common goods From this republican political theory Sunstein argues for a theory of judicial review when the Supreme Court reviews the constitutionality of a legislative act the Court should ensure that the act does not reflect a mere naked preference but rather reflects some public value or common good This essay questions the coherence of the concept of naked preferences by arguing that preferences are socially constructed not only through the political process as Sunstein suggests …
Preemption And The Dormant Commerce Clause: Implications For Federal Indian Law, Stephen Matthew Feldman
Preemption And The Dormant Commerce Clause: Implications For Federal Indian Law, Stephen Matthew Feldman
Faculty Articles
In 1832 the Supreme Court held that states could not extend their laws into Indian country but over the years the Court has allowed greater and greater state incursions The Court now recognizes two partial barriers to state power in Indian country first any state law that infringes on tribal sovereignty is barred second any state law that is preempted by federal law is also barred Nonetheless the Court has not clearly identified the sources of constitutional power underlying either of these barriers to state power This Article argues that each barrier to state power springs from and should be …
The Developing Test For State Regulatory Jurisdiction In Indian Country: Application In The Context Of Environmental Law, Stephen Matthew Feldman
The Developing Test For State Regulatory Jurisdiction In Indian Country: Application In The Context Of Environmental Law, Stephen Matthew Feldman
Faculty Articles
The extent of state jurisdiction over Indians and Indians lands has created conflicts between the federal state and tribal governments since the nations inception Congressional responses to this inveterate problem have fluctuated significantly At times Congress has favored the assimilation of Indians into the majority society and the destruction of tribal identities with consequent increases in state jurisdiction At other times Congress has favored separatism for Indians and the preservation of tribal cultures and governments In 1832 the Supreme Court in the case of Worcester v Georgia held that state laws had no effect within Indian reservations Since Worcester the …
Indigents In The Federal Courts: The In Forma Pauperis Statute -- Equality And Frivolity, Stephen Matthew Feldman
Indigents In The Federal Courts: The In Forma Pauperis Statute -- Equality And Frivolity, Stephen Matthew Feldman
Faculty Articles
The main provision of the modem federal in forma pauperis statute enables indigents to file civil actions in the federal courts without paying a filing fee Thus the federal courts are at least theoretically open to even the most impoverished litigants The in forma pauperis statute however is conditional a court may dismiss an in forma pauperis complaint if satisfied that the action is frivolous This nebulous condition has spurred considerable disagreement This Article explores the restrictions and controls that district courts can legitimately place on unpaid actions The ambiguous language and the unhelpful legislative history of the statute have …
The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen Matthew Feldman
The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen Matthew Feldman
Faculty Articles
A debate between realists and antirealists has characterized western metaphysics While metaphysical realists ground existence on an objective world antirealists ground existence on a thinking subject and human culture The argument in jurisprudence as elsewhere is that either we are capable of objective knowledge or we are doomed to freefloating subjectivism We demand the impossible absolute objectivity to avoid the catastrophic unconstrained subjectivity The interpretive turn attempts to move beyond this insoluble dilemma the eitheror of objectivity and subjectivity Thus in jurisprudence the interpretive turn is well worth taking if only because it offers the possibility of transcending realism and …
Republican Revival/Interpretive Turn, Stephen Matthew Feldman
Republican Revival/Interpretive Turn, Stephen Matthew Feldman
Faculty Articles
The civic republican revival and the interpretive turn are two leading movements in constitutional jurisprudence Civic republicanism emphasizes that citizens belong to a political community where they participate in a dialogue about the common good Interpretivism meanwhile holds that all of our practices including constitutional adjudication are interpretive we are always situated within interpretative communities and traditions that simultaneously constrain and enable understanding Civic republicanism and interpretivism however both face serious challenges Critics of the republican revival charge that it invites oppression and silencing of divergent voices because it emphasizes the community and the common good Opponents of the interpretive …
Whose Common Good? Racism In The Political Community, Stephen Matthew Feldman
Whose Common Good? Racism In The Political Community, Stephen Matthew Feldman
Faculty Articles
Political pluralists and civic republicans have launched constitutional and political theory into a controversy of paradigmatic proportions Pluralists insist that politics is no more than a struggle between autonomous and rational individuals or groups who strive to satisfy their preexisting private interests Civic republicans argue instead that the government should pursue the common good not preexisting private interests Something vital is missing from this debate a recognition of and confrontation with American racism In the context of American society no constitutional or political theory can succeed without a comprehensive awareness and understanding of racism The Constitution must be understood interpreted …
History And Interpretation, Stephen Matthew Feldman
History And Interpretation, Stephen Matthew Feldman
Faculty Articles
This piece is a contribution in a symposium The Scholarship of Sanford V Levinson The article focuses on two of Levinsons works the 1982 article Law as Literature and the constitutional law casebook Processes of Constitutional Decisionmaking Cases and Materials Both have influenced constitutional scholarship by providing a new approach historicism
How To Be Critical, Stephen Matthew Feldman
How To Be Critical, Stephen Matthew Feldman
Faculty Articles
This work is a contribution to a symposium Philosophical Hermeneutics and Critical Legal Theory The central question for this essay is the following Given the nature of critical activity and theory how can one be critical My thesis is that HansGeorg Gadamers philosophical hermeneutics when combined with Jurgen Habermass communicative or discourse theory or Jacques Derridas deconstruction can guide us toward critical activity The article summarizes philosophical hermeneutics and examines the relationship between Gadamers hermeneutics and critical legal activity Philosophical hermeneutics explains on the one hand how we can come to understand critical concepts and on the other hand how …
The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen Matthew Feldman
The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen Matthew Feldman
Faculty Articles
In An Economic Interpretation of the Constitution of the United States Charles A Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest that the pursuit of common good was not so much a motive as a veneer The current historical consensus is that Beards thrust is incorrect In this essay I largely agree with this assessment but his economic approach can add an important element to the discussion of constitutional history And though his economic depiction does not closely fit the framing of the Constitution it uncannily fits the Roberts Courts current …
Democracy And Dissent: Strauss, Arendt, And Voegelin In America, Stephen Matthew Feldman
Democracy And Dissent: Strauss, Arendt, And Voegelin In America, Stephen Matthew Feldman
Faculty Articles
During the 1930s American democratic government underwent a paradigmatic transformation from republican to pluralist democracy a movement away from relying on white AngloSaxon male values of the common good and toward a more open and inclusive form of democracy Pluralist democracy achieved hegemony during the postWorld War II era as the correct theory and practice of government but it did not go unchallenged European emigres such as Leo Strauss Hannah Arendt and Eric Voegelin all of whom had escaped from Nazi Germany in the 1930s raised the most persistent oppositional views This Article is about those contemporaries who experienced and …
Playing With The Pieces: Postmodernism In The Lawyer's Toolbox, Stephen Matthew Feldman
Playing With The Pieces: Postmodernism In The Lawyer's Toolbox, Stephen Matthew Feldman
Faculty Articles
The distinction between modernism and postmodernism in legal scholarship is highly complex This Essay does not explore this problem in depth but builds on the recognition that most modernist scholars expressly articulate and defend normative values and goals while postmodern scholars rarely do so Postmodernists are themselves enmeshed within the structures of scholarly and lawyerly discourse As such they must construct narratives and arguments that use the available rhetorical tools of discoursenamely they must use modernist and postmodernist concepts to present their views But whereas modernist scholars use similar tools with earnestness postmodernist scholars use these tools with irony Postmodernists …
From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen Matthew Feldman
From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen Matthew Feldman
Faculty Articles
This article explains the crucial differences between premodernism and modernism A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value When premodernism gave way to modernism the commitment to foundationalism remained intact Modernists believed that knowledge must be firmly grounded on an objective foundation A crucial distinction between modernism and premodernism however lay in their respective ideas of foundations Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge modernists rejected religious natural and other traditional footings and searched for some alternative foundation …
Principle, History, And Power: The Limits Of The First Amendment Religion Clauses, Stephen Matthew Feldman
Principle, History, And Power: The Limits Of The First Amendment Religion Clauses, Stephen Matthew Feldman
Faculty Articles
This article addresses whether the religion clauses of the US Constitution prohibit the injection of religious values into political debate I argue that Christianity hegemonically controls American society and culturally oppresses outgroup religions particularly the prototypical minority religion of Judaism I critically analyze how the constitutional principle of separation of church and state contributes to the current orientation of power within American society I approach the problem of Christian social power from three perspectives symbolic power structural power and the relationship between symbolic and structural power
The Politics Of Postmodern Jurisprudence, Stephen Matthew Feldman
The Politics Of Postmodern Jurisprudence, Stephen Matthew Feldman
Faculty Articles
Forms of postmodern interpretivism including philosophical hermeneutics and deconstruction assert that we are always and already interpreting This assertion has provoked numerous scholarly attacks many of which invoke standard modernist hobgoblins such as textual indeterminacy solipsism ethical relativism and nihilism From the modernist standpoint postmodern jurisprudence is either conservative or apolitical because it lacks the foundations necessary for knowledge and critique In this article I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism Postmodern interpretivism does not lead to an infinite regress of interpretations that undermines …
Conservative Eras In Supreme Court Decision-Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen Matthew Feldman
Conservative Eras In Supreme Court Decision-Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen Matthew Feldman
Faculty Articles
Commentators often describe Employment Division v Smith as the beginning of a new era in free exercise decisionmaking Before Smith the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims After Smith the Court deferred to the political process upholding any reasonable law of general applicability From a doctrinal standpoint this description of Smith is perfectly accurate and informative In this Essay I argue that from a legalpolitical standpoint Smith manifests the culmination of one type of judicial conservatism a traditionalist conservatism that had been developing since the 1970s Judicial restraint and deference …
Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen Matthew Feldman
Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen Matthew Feldman
Faculty Articles
This essay is derived from the Jerry W HouselCarl F Arnold Lecture delivered on November 3 2012 at the University of Wyoming College of Law The work discusses Chief Justice John Robertss decision in the Affordable Care Act case in light of its political significance as compared to the Madison v Marbury case The essay briefly summarizes the ACA case and goes on to focus on Congresss commerce power It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine
The Supreme Court In A Postmodern World: A Flying Elephant, Stephen Matthew Feldman
The Supreme Court In A Postmodern World: A Flying Elephant, Stephen Matthew Feldman
Faculty Articles
This Essay argues that the Supreme Courts recent jurisprudence manifests certain postmodern themes The two Justices leading this postmodern movement are in the vanguard of postmodernism They are the avantgarde the radical postmodernists Surprisingly these two Justices are none other than those leading judicial and political conservatives Chief Justice William Rehnquist and Associate Justice Antonin Scalia
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Matthew Feldman
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Matthew Feldman
Faculty Articles
How do law and politics intertwine in Supreme Court adjudication Traditionally in law schools and political science departments scholars refused to mix law and politics Law professors insisted that legal texts and doctrines controlled Supreme Court decision making while political scientists maintained that political ideologies dictated the justices votes In the late twentieth century some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct They attempted to stir law and politics together but ended with an oilandwater type of mix law and politics settled apart The best approach as presented in …
Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen Matthew Feldman
Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen Matthew Feldman
Faculty Articles
The goal of originalism has always been purity Originalists claim that heir methods cleanse constitutional interpretation of politics discretion and indeterminacy The key to attaining purity is history Originalist methods supposedly discern in history a fixed constitutional meaning Many originalists now claim that the most advanced method the approach that reveals the purest constitutional meaning is reasonableperson originalism These new originalists ask the following question When the Constitution was adopted how would a hypothetical reasonable person have understood the text This Article examines historical evidence from the early decades of nationhood to achieve two goals First it demonstrates that reasonableperson …
Modernity, Religion, And The Public Sphere, Stephen Matthew Feldman
Modernity, Religion, And The Public Sphere, Stephen Matthew Feldman
Faculty Articles
For many decades Americans have openly disagreed about the role that religion should play in public debate Liberals typically maintain that religion should not be an important element in public discussion about our communal goals Conservatives insist that religion should play an unencumbered role in public life This article reviews two works Steven H Shiffrin The Religious Left and ChurchState Relations and Winnifred Fallers Sullivan Prison Religion FaithBased Reform and the Constitution both of which challenge this liberalconservative dichotomy They suggest that we have reached this liberalconservative impasse partly because of the forces animating modernity Latestage modernists generally have insisted …
Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases), Stephen Matthew Feldman
Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases), Stephen Matthew Feldman
Faculty Articles
Whereas modernists constantly attempt to reduce the meanings of texts to an essential core or single truth postmodernists are antifoundationalists and antiessentialists According to postmodernists the meaning of a text is never grounded or stable and therefore one can always find multiple meanings or truths Thus one performs a postmodern flip by taking a segment of a text event or concept that apparently has been reduced to a static meaning or truth and suggesting the possible existence of another meaning or truth The postmodern flip then is completed by exploring how this new meaning or truth of the segment of …