Law Commons^™

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

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No abstract provided.

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

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In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

The Dual Model Of Balancing: A Model For The Proper Scope Of Balancing In Constitutional Law, Iddo Porat

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One of the most pressing problems of current constitutional law in the aftermath of September 11 is how to balance constitutional rights and national security interests. No one however seems to pause and ask should we balance individual rights and national security interests and if so when. One of the reasons for this is the widespread acceptance of what I shall term in this Article, the balancing consciousness: the view that every problem can and should be solved through balancing conflicting considerations. This Article demonstrates that the balancing consciousness is misleading. Not every problem can and should be solved through …

The Irrational Supreme Court, Michael I. Meyerson

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Abstract: The Irrational Supreme Court

The pejorative “irrational” is used to describe many defects in legal reasoning, but is generally not meant to be understood as a literal lack of rational thinking. Similarly, the “rational basis test” is not meant to determine whether a legislature is “not endowed with reason or understanding,” but rather if it has acted with some hidden, invidious motive. Incredibly, though, the Supreme Court has frequently issued truly “irrational opinions,” simply due to the fundamental nature of group decision-making.

Much has been written about Nobel Prize winner Kenneth Arrow’s “Impossibility Theorem,” which proved that, when faced …

Book Review: Forensic Linguistics, Dru Stevenson

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Review of John Gibbons' text "Forensic Linguistics"

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progress & Reform, Morse Tan

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This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

A Brief Look At Broward County Lawyers’ And Judges’ Attitudes Toward Plea Bargaining As A Tool Of Courtroom Efficiency, Mohammad A. Faruqui

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Even the most rigidly ideological prosecutors acknowledge that they need to plea out most of the less serious criminal charges to ensure justice without incurring an unmanageable backlog of cases. But what do most criminal lawyers and judges think about the plea arrangment system? Is it fair to defendants? Do lawyers use plea bargains to better serve their clients by finding the best deal, or do they use plea bargains to cut their case load for what some call "garbage cases?" This paper surveys a small sample to see how 21st century Broward County criminal lawyers feel about the plea …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

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This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Jury Trials In Japan, Robert M. Bloom

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The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo

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This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system, presenting the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. These data provide solid descriptions of how courts exercise their discretion in valuing firms and assets.

This Article accomplishes two objectives: First, using scientific methodology, this Article explains the content of bankruptcy valuation doctrine. Second, this Article uses doctrine as a variable to explore system dynamics that govern the processes of change over time.

Significant findings include (i) courts tend to “split the difference” in …

The Case For The Legislative Override, Nicholas Stephanopoulos

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What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …

The Deep Structure Of Law And Morality, Robin B. Kar

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This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progress & Reform, Morse Hyun-Myung Tan

ExpressO

This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

Duty And Consequence: A Non-Conflating Theory Of Promise And Contract, Jeffrey Marc Lipshaw

ExpressO

I argue that the debate between deontologists and consequentialists of contract law conflates and therefore unduly confuses the analysis of each of them. The debate is a reprise of the conflation of reason and knowledge. Present-day legal consequentialists see reason (pure or practical) as unhelpful or worse. Pragmatism, if anything, rules the day. But the present-day rationalists fare no better, seeking to make constitutive claims of knowledge on the basis of reason. Hence the concept of contract as promise has been subject to the criticism that it fails as an explanation of the law (versus an exposition of how our …

Western Institution Building: The War, Hayek’S Cosmos And The Wto, M. Ulric Killion

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Despite the shortcomings of Hayek’s spontaneous order, there is a positive side, perhaps even a positive feedback. Hayek left us with a “what if” question and returns us to that initial opening of Pandora’s Box, or perhaps the initial onset of neo-realism, neo-liberalism, developmentalism, globalism, transnationalism and other concepts, precepts and adjectives justifying institution building by bargaining and military force. In terms of new world order, institution building by necessity requires fundamental changes in governmental structures in non-western cultures and nation-states such as China, Afghanistan and Iraq. Such changes are being prompted by means of political, economic and military powers …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, 88 Minn. Law Rev. 1233, Suzanne B. Goldberg

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Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

The Corporation As God, Douglas Litowitz

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No abstract provided.

Contingency And Contracts: A Philosophy Of Complex Business Transactions, Jeffrey Marc Lipshaw

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In this article, I argue that the prevailing literature on contract theory does not adequately address the way real-world lawyers address uncertainty in complex business transactions. I attribute this to the constraints imposed by thinking in legal models, the dominant tendency to turn to economics for analysis and normative prescription, and the focus on adjudicative issues of hindsight interpretation. Commercial uncertainty, and the law’s response to it, is only a subset of the broader philosophical issue of contingency. As an alternative to prevailing thought, I trace philosophical approaches to contingency, utility and morality that have come down to us since …

The Bewitchment Of Intelligence: Language And Ex Post Illusions Of Intention, Jeffrey Marc Lipshaw

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Lawyers who negotiate and litigate over complex deals have an intuitive notion of the value of what they do in connection with the contract. The arguments around technical contract language often are a lawyers’ game; in most cases, what is clear would have been clear on a handshake; and what is tightly negotiated bears only a random relationship to the areas of future dispute. If they happen to have drafted tight and clear language around the particular matter in dispute, it is as much luck as foresight. Thereafter complex agreements can have binding effect for years, but most of the …