Law Commons^™

Hospitality At The Center Of Dispute Resolution, Peter Block

Cardozo Journal of Conflict Resolution

My intent here is to amplify and give voice to the transformative importance of the work described in three of the Articles being published in this edition of the Cardozo Journal of Conflict Resolution. The Articles discuss restorative answers to this culture's dominant narrative of retribution. Each of these social innovations represents a form of hospitality, which is akin to the welcoming of strangers. The Articles form a strategy, in alliance with the alternative dispute resolution movement and addressing the violence against the self and others, which forms the headlines of our daily news consumption.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Articles

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …

A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach To Assessing Judicial Ideology, Joseph S. Miller

Scholarly Works

What do judges really care about? Scholars have used various methods to identify a judge’s policy preferences. The standard method in political science, called the Martin-Quinn score, counts a judge’s votes for conservative or liberal outcomes. But judges don’t just vote, they give reasons in written opinions. Reason-giving is not only part of the tradition of common-law decision making but is also central to rule-of-law ideals, concerns that are not the focus most empirical methodologies. What’s more, the reasons a judge gives for reaching a conclusion provide powerful evidence for what the judge herself cares about. That is especially the …

"Grievously And Egregiously Wrong": American Abortion Jurisprudence, Alyson M. Cox, O. Carter Snead

Journal Articles

This paper considers American abortion jurisprudence in the light of the Supreme Court's grant of certiorari in Dobbs v. Jackson Women's Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made …

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Scholarship@WashULaw

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Unresponsive Judicial Review: How Formalism On The American Bench Thwarts Democracy Defense, Andrea Scoseria Katz

Scholarship@WashULaw

At a time when worldwide democratic decline is of grave concern, Rosalind Dixon’s Responsive Judicial Review is vital and timely. Dixon sketches an attractive vision of courts’ highest role as one of democracy-defense: protecting free and fair elections, ensuring rights and freedoms remain in vigor, muscularly enforcing checks and balances. Granted, argues Dixon, “responsive” courts must exercise their powers in a context-sensitive way; courts in fraught environments cannot get away with quite as much entrepreneurial judging as their counterparts, and they should tailor a remedy to ensure, one, its own feasibility, and two, the court’s survival. The pragmatic character of …

The Institutional Mismatch Of State Civil Courts, Colleen Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

What War Did To The Academy, What The Academy Did To War: A 20-Year Retrospective On The Effects Of The Post-9/11 Wars, Deborah Pearlstein

Articles

The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement …

Criminal Law Exceptionalism, Benjamin Levin

Publications

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Interconstituted Legal Agents, Christian Turner

Scholarly Works

Legal theory and doctrine depend on underlying assumptions about human nature and sociality. Perhaps the most common and basic assumption is that we are separate persons who communicate imperfectly with one another. While this separation thesis has been questioned, it still dominates legal theory. However, I show that understanding separation and connection as alternative perspectives, rather than as ontologically true or false, reveals that legal conflict often arises when these perspectives give rise to clashing intuitions concerning the meaning of community and what constitutes goals and harms. This Article organizes perspectives on social relationships in increasing order of intersubjectivity: isolation, …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

The Internal Point Of View In Private Law, Paul B. Miller, Jeffrey A. Pojanowski

Journal Articles

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, …

Panel 2: Modern Trends And Internet Speech, Enrique Armijo, Paul M. Barrett, Michael A. Cheah, Zahra Takhshid, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article explores the complexities and future of Section 230, focusing on its role in protecting online platforms from liability for user-generated content. Panelists argue that Section 230 is an immunity, not a subsidy, and discuss its implications for content moderation, new technologies, and regulatory oversight. They propose various reforms, including FTC regulation and clarifying Section 230's scope for emerging harms.

The Life And Work Of Robert Cover- Robert Cover’S Social Activism And Its Jewish Connections, Stephen Wizner

Touro Law Review

No abstract provided.

Revisiting A Jurisprudence Of Obligation, Ariel Evan Mayse, Kenneth A. Bamberger

Touro Law Review

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent …

Rights And Duties In Jewish Law, Itamar Rosensweig, Shua Mermelstein

Touro Law Review

In this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first …

Reconsidering The Nomos In Today’S Media Environment, Kimberlianne Podlas

Touro Law Review

Today’s media landscape is wholly unlike that which existed when Cover first discussed narrative and the nomos; specifically, the status of television as both a cultural messenger and object of scholarly study has changed significantly. Accordingly, this article contemplates narrative in the contemporary media environment, specifically, television as an essential source of narratives. To enhance understandings of the roles television narratives play and which narratives play a role, this article employs an empirical perspective. Surveying Media Theory, it outlines research on television effects, including when and why television’s representations of law can impact audience attitudes, behaviors, perceptions, knowledge, and judgements. …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Law's Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

Articles

No abstract provided.

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Moral Authority Of Original Meaning, J. Joel Alicea

Scholarly Articles

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

The Myth Of Legal Realist Skepticism, Dan Priel

All Papers

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their …

Religion, Public Law, And The Refuge Of Formalism, Howard Kislowicz, Benjamin Berger

All Papers

In this article we suggest that the encounter with religious legal traditions has surfaced a distinct vein of formalism in Canadian public law, discernable across the Court’s law and religion jurisprudence. This is so despite the centrality of substantive analysis in the account Canadian public law gives of itself. But there are distinct challenges and a particular anxiety that surrounds the law-religion encounter; we argue that the fraught sovereignty and pluralism problems that this encounter presents has led Canadian public law to rediscover its formalist habits and the comfort that they bring.

The Supreme Court of Canada’s decisions in Wall …

Zombie Laws, Howard M. Wasserman

Lewis & Clark Law Review

A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes …

Step-Parent As Fiduciary, Ruth Zafran

Lewis & Clark Law Review

Does a step-parent have any obligations toward the non-resident legal parent of the child? To date, the law has been silent on this point, and the scholarship has paid little, if any, attention to it. This Article argues that the conceptual framework of fiduciary enables us to recognize, both conceptually and legally, the relationship between the step-parent and the non-resident legal parent (who, generally speaking, spends less time with the child on a day-to-day basis). The aim of this fiduciary duty is to protect the more vulnerable party (in this specific context, the non-resident legal parent) from the more powerful …

Trauma-Informed Forensic Mental Health Assessment: Practical Implications, Ethical Tensions, And Alignment With Therapeutic Jurisprudence Principles, Julie Goldenson, Stanley Brodsky, Michael L. Perlin

Articles & Chapters

The need for trauma-informed practice is well recognized across mental health and legal settings; however, relatively little has been written about its application in forensic mental health assessment. This paper focuses on trauma-informed assessment of criminal justice involved individuals, given the high rates of trauma exposure and related sequelae in this population. A trauma-informed lens allows forensic mental health examiners to assess examinees in the context of their developmental histories and lived experience. Such a lens also has implications for the entire assessment process in terms of interviewing, psychological testing, diagnostic conclusions, feedback, and the provision of testimony and educating …

Culture And Fair Use, Michael Goodyear

Articles & Chapters

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.
Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright …

Twenty-Five Years Of The Adoption And Safe Families Act, Eve M. Brank

Court Review: Journal of the American Judges Association

The year 2022 marks the 25th anniversary of President Clinton signing into law the Adoption and Safe Families Act (ASFA). Enacted in November of 1997, ASFA was a bipartisan federal law intended to address concerns with the foster care and adoption systems. With fiscal incentives attached, states quickly adopted complementary ASFA legislation.

At its core, ASFA changed the primary objective from family reunification to the child’s health and safety. In doing so, ASFA sought to decrease the amount of time a child spent without a permanent home by limiting how long a child could spend in foster care. Referred to …

"Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric M. Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …