Law Commons^™

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Law As Fact And As Reason For Action: A Response To Robert Alexy On Law's 'Ideal Dimension', John M. Finnis

Journal Articles

Robert Alexy’s 2013 Natural Law Lecture, published in vol. 58 of the American Journal of Jurisprudence, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer’s and the participant’s perspective. It argues on this basis for a “non-positivist” theory of law that is “inclusive” in that it classifies some unjust laws as laws, but not all (and is thus not “super-inclusive”); it rejects the “exclusive non-positivism” that would treat every injustice in a law’s making or content as excluding it from the class of valid …

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Journal Articles

Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, I contend that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method. My aim is to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. I seek to demonstrate that although certain consequences of deviating from precedent can be studied …

Precedent And Jurisprudential Disagreement, Amy Coney Barrett

Journal Articles

This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, "error" is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different …

Piety And Profession: Simon Greenleaf And The Case Of The Stillborn Bowdoin Law School, 1850–1861, Alfred S. Konefsky

Journal Articles

In 1850, Bowdoin College turned to former Harvard professor Simon Greenleaf when it sought to establish a law school. Although the school did not materialize, Greenleaf wrote a remarkable report that reveals anxieties about the profession, competing visions of legal education, and controversies over the meaning of the science of law in antebellum New England.

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …

Natural Law Theory: Its Past And Its Present, John M. Finnis

Journal Articles

The past in which theory of this kind had its origins is notably similar to the present. For this is theory-practical theory-which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth century B.C. Hellenic (Sophistic) or their modem (Enlightenment, Nietzschean or postmodern) forms.

The Rule Of Law And The Perils Of Precedent, Randy J. Kozel

Journal Articles

In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive …

Coexisting Normative Orders? Yes, But No, John M. Finnis

Journal Articles

There are indeed two normative orders. But not "coexisting" in the sense that French law coexists with English law, and English law with international law, and all of them with canon law. No, the relation between the normative orders is much more intimate than "coexistence" (in the focal sense of that term). The one is a necessary source of the full validity, and strategically important parts, of the other, and is a real but much less straightforward source (by determinatio) of all its other legitimate parts; and is also an ever-present source of legitimate, and in extreme cases delegitimising criticism …

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources …

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Equality And Differences, John M. Finnis

Journal Articles

This revised and annotated version of the H.L.A. Hart Memorial lecture in the University of Oxford in June 2011 has some significant differences in coverage from the essay of the same title published in the American Journal of Jurisprudence 56 (2011) 17-44, including a brief discussion of Waldron’s treatment of basic equality and Cohen’s “luck-egalitarianism”. The object of the lecture is to establish the grounds of basic human equality, and to indicate how neglect of non-basic inequalities and of preconditions for sustainable common good tends to ensure that legal measures promoting equality rights and condemning ‘discrimination’ yield serious injustices (violations …

Justice For Hedgehogs, Robert E. Rodes

Journal Articles

Professor Dworkin begins this complex and ambitious book with a chapter called "Baedeker" after the nineteenth century guidebooks. In it, he gives an overview of his project, which is to show "the unity of value." The "title refers to a line by an ancient Greek poet, Archilochus, that Isaiah Berlin made famous for us. The fox knows many things, but the hedgehog knows one big thing. Value is one big thing" (1).

He articulates his overarching value in terms of human dignity: "[W]e each have a sovereign ethical responsibility to make something of value of our own lives, as a …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

Journal Articles

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and …

A Modern Legal Ethics: Adversary Advocacy In A Democratic Age, Robert E. Rodes

Journal Articles

Professor Markovits has given us in A Modern Legal Ethics a profound, provocative, and closely argued philosophical treatment of his subject. He begins by asserting "that adversary advocates commonly do, and indeed are often required to do, things in their professional capacities, which, if done by ordinary people in ordinary circumstances, would be straightforwardly immoral" (1). Noting that lawyers commonly take issue with such a claim, he sets out to prove it in a chapter called "The Lawyerly Vices," divided into two sections: "Lawyers Lie," and "Lawyers Cheat." Against these, he sets the "lawyerly virtues" of "professional detachment" and "fidelity."

The Interpretation Game, Robert E. Rodes

Journal Articles

Sir James Fitzjames Stephen, embarking on a powerful critique of John Stuart Mill, says: "In stating the grounds of one's dissent from wide-spread and influential opinions it is absolutely necessary to take some definite statement of those opinions as a starting point, and it is natural to take the ablest, the most reasonable, and the clearest." This is my justification for reviewing the present work. My disagreement with it is broad and deep, but, unlike many proponents of similar views, Professor Benson writes clearly and without jargon, and he brings to his work the experience of a working lawyer and …

The Evangelical Debate Over Climate Change, John Copeland Nagle

Journal Articles

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …

An Rsvp To Professor Wexler's Warm Therapeutic Jurisprudence Invitation To The Criminal Defense Bar: Unable To Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn

Journal Articles

This Article responds to Professor David 13. Wexler's recent suggestion that adopting Therapeutic Jurisprudence ("V) principles to create a new type of "rehabilitative" defense lawyer could improve the criminal defense bar. Contrary to the empirical foundation of the therapeutic justice movement, many of his proposed changes seem unsubstantiated. Others, such as calls for creative plea bargaining, are already part of the practice of quality defense attorneys. The "rehabilitative," -Pi defense lawyer may be overly paternalistic, imposing his interpretation of the facts and his standards of appropriate behavior on the accused; such a lawyer also may not comport with express ethical …

Aesthetic Judgment And Legal Justification, Guyora Binder

Journal Articles

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, …

The Canon Of American Legal Thought, Robert E. Rodes

Journal Articles

Professors Kennedy and Fisher have put together a book containing twenty essays, most of them first published in law reviews. They are elegantly presented, and each is preceded by an introductory essay by one of the editors, which provides background information on the author, analyzes the piece lucidly and succinctly, and situates it in the development of American legal thought. Each piece is also preceded by a bibliography, which further situates it by describing the rest of the author's work and summarizing the commentary it has evoked. All the works are given in full, adding considerably to what can be …

On Professors And Poor People - A Jurisprudential Memoir, Robert E. Rodes

Journal Articles

This article describes the origin and sources of the author's jurisprudential doctrine, and his adoption of liberation theology as a way of reconciling Sociological Jurisprudence with the philosophy of history. It argues that the pursuit of justice is eschatologically validated even though its historical fruition is problematical. It goes on to discuss the working out in legal practice of the liberationists' call for a preferential option for the poor.

Sacrifice, The Common Good, And The Catholic Lawyer, John J. Coughlin

Journal Articles

For some two decades since I entered law school, the connection between the philosophy of the human person and law has been of comparative interest to me. My interest was stimulated in no small part by the late Pope John Paul II, who urged that canon law reflect the essential elements of what it means to be human. Comparative legal study of the canon law of the Catholic Church with the law of the liberal state has convinced me of the importance of the understanding of the human person that underpins the law. Canon law and the Catholic intellectual tradition …

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …

Contraception As A Mask Of Personhood, Charles E. Rice

Journal Articles

Sometimes you can learn something by teaching Torts. In my case it happened with the Palsgraf case and John Noonan did it. When we reached Palsgraf, I always discussed with the class Professor Noonan's analysis in Persons and Masks of the Law.

Mrs. Palsgraf lost as a matter of law in the Court of Appeals, and Chief Judge Cardozo wrote the opinion. Professor Noonan thinks she lost because her humanity was covered by the abstract persona, the mask, of an "unforeseeable plaintiff." He did not accuse Cardozo of misapplying the rule of law he used, but of myopia in selecting …

Using Therapeutic Jurisprudence To Bridge The Juvenile Justice And Mental Health Systems, Michael Jenuwine, Gene Griffin

Journal Articles

The article reviews the concept of therapeutic jurisprudence, integrating mental health principles into the juvenile justice system and the sentencing of juveniles. It discusses reasons why mental health and juvenile justice systems have not worked well together in the United States. The author describes current theories of juvenile justice and community health that would allow these systems to work better together, such as Balanced and Restorative Justice and the Child and Adolescent Service System Program. He explains how these theories can be better integrated into the juvenile justice system and argues that the best hope for therapeutic jurisprudence lies in …

The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder

Journal Articles

The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically rather …

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Journal Articles

The Rabbis of the Talmud were a community for moral discernment—a community commissioned by God to interpret the Word of God. Their story is theology. Michael Scanlon, a modem Roman Catholic thinker, assumes such a theology and adds anthropology.

The Rabbis assume and Scanlon describes a community for ethical discernment. It is a perception—somewhat empirical, somewhat theological—that is important and neglected for lawyers in academic jurisprudence and in religious legal ethics. My argument here is that what lawyers should do about "ethical dilemmas" in professional practice can be discerned in the sort of community the Talmud describes, and Scanlon describes, …

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …