Law Commons^™

Taking Liberties: The Supreme Court's New Hierarchy Of Rights And Its Victims, Richard B. Katskee

West Virginia Law Review

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

George Washington’S Teeth, Wittgenstein, And Two Gruesome Problems For Originalism, Scott Devito

University of Arkansas at Little Rock Law Review

With the conservative turn of the U.S. Supreme Court, originalism has become ascendant. This rise to preeminence should trouble the legal community because originalism is grounded on a naive understanding of the interpretative process. Once we wash away this naivety and delve more deeply into legislative interpretation, we see that originalism fails in three ways. First, here is recent empirical evidence that general meaning is rare and, as such, the original meaning required by the theory is unlikely to have existed. Second, originalism fails to take into account the Problem of Induction—that making generalized inferences from a limited dataset is …

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

Dissenting Authority, Guyora Binder

Journal Articles

This essay explicates J.B. White’s rhetorical conception of authority as a potentially collaborative achievement and contrasts it with the conception of authority as surrender of judgment prevailing in legal philosophy. On White’s view, authority is not an instrument held and deployed, but is conferred, like respect. This conception of authority illuminates three puzzles concerning the relationship between dissent and legal authority. First, Legal Positivism’s purportedly descriptive account of law insists it must claim an authority to govern independent of justice and assent. Yet law’s language is replete with justice-based appeals for popular assent. White’s reading of the practice of legal …

Prudence, Role Morality, And Restraint: Judge Wilkinson On The Separation Of Powers, Katherine Mims Crocker, Jack Goldsmith

Faculty Scholarship

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

Just What Are You Trying To Prove? The Relevance Of History To Constitutional Theory And Practice, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

No abstract provided.

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Killers That Once Were Humans: Reading The Role Of Modern Law Via Instrumental Rationality, Momen Abdelbari Hassan

Theses and Dissertations

For Max Weber, the process of modernization is the process of rationalization in which it includes every realm in our modern life, such as the economy, science, organization, education, and law. However, this kind of rationalization has created coercive and inhumane conditions because rationalization has converted to being instrumental (value-free) without regard to any transcendental or moral values. The inhumane paradigm has become the only fate of our world. The vision needs rational domination to be achieved through formal rational law. Modern law, along with bureaucratization, has paved the road to rational political domination. This kind of domination captures human …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Incoherence Of Evidence Law, G. Alexander Nunn

Faculty Scholarship

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

Even Laypeople Use Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n=59 million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English.

Next, two pre-registered text generation experiments (n=286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws …

Pluralist Justice And Liberal Constitutionalism: A Reply To Critics, Michel Rosenfeld

Cardozo Law Review

An author is privileged to have his work seriously considered and evaluated by a group of preeminent scholars from different disciplines and parts of the world. This is even much more the case with respect to my book, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism, which was written in times of self-isolation due to the COVID-19 pandemic, thus lacking the input of the customary testing of ideas in conversations with colleagues with whom one habitually interacts while on campus. I am grateful for the live symposium on my book that …

Kompetensi Absolut Dan Aktivisme Yudisial Dalam Peran Mahkamah Agung Menguji Anggaran Dasar Partai Politik Di Indonesia, Denis Kurniawan

Jurnal Konstitusi & Demokrasi

This article examines the necessity for the Supreme Court to extend its absolute competence in conducting judicial reviews (right to judicial review) of the Articles of Association and/or Bylaws of Political Parties, which serve as the object of review (objectum litis). This article was prepared by doctrinal research methods. Political parties are institutions that are known for their existence, authority, and constitutional dissolution through the 1945 Constitution. As such, the Articles of Association and Bylaws of Political Parties can be defined as regulations that are established by a Political Party based on orders from higher legal norms, namely the law. …

Problems With Authority, Amy J. Griffin

St. John's Law Review

(Excerpt)

Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the …

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

Articles

Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Trade Law Policing On The Factory Floor: Next Generation Agreements And Their Corporate Accountability Tools, Kathleen Claussen

Articles

Trade policymakers' increased attention to sustainability has prompted the development of trade tools focused on corporate accountability within international trade agreements. As evidenced by the creation and use of the United States-Mexico-Canada Agreement's Rapid Response Labor Mechanism, this institutional shift has potent implications for labour rights and environmental protections. This article, which transcribes a lecture delivered at the Lauterpacht Centre in October 2023, scrutinises the turn toward supply-chain policing within international trade law and its institutional, legal, sociological, rhetorical and disciplinary effects.

Language, Legitimacy, And The Law: The Social Roots Of Legal Obligation, Joshua Keton

Dissertations, Theses, and Capstone Projects

In a recent turn, both legal scholarship and judicial practice in the United States have converged on the idea that the content of the law is grounded on moral facts—especially facts about democracy. Leveraging insights from the philosophy of language, especially the underdetermination of meaning by syntax and semantics, I argue that textualism can only be reconstructed as a small part of a complete theory of legal interpretation. I then consider a more serious claim to the necessity of moral facts in metaphysically grounding the content of the law. As Mark Greenberg’s anti-positivist theory would have it, the content of …

On Comprehensive Pluralism: Two Pluralistic Deficits, Daniel Bonilla Maldonado

Cardozo Law Review

A Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, …

Legal Summaries Of Administrative Law Cases, Keyana Young

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Egypt’S Legal Modernism: Challenging The National Discourse, Mohamed A. El-Deeb

Theses and Dissertations

Egypt’s legal modernity is the story of the modern Egyptian state itself. Reforming the country’s judiciary in the late nineteenth century was meant to achieve ambitious aims beyond the functionality of a justice system. The utmost goal was the country’s independence from the suzerainty of the Ottoman Empire. The judicial reforms modernized the Egyptian state and built a judiciary and legal community like no other place. Egypt achieved its independent judiciary before gaining its political independence. That was a remarkable achievement of the judicial reform. That rich part of Egypt’s modern history is negated and disregarded from public awareness. Not …

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

The Validity And Criticisms Of The Current Approach Of Human Rights Bodies Regarding The Positive Procedural Obligations Of States, Faris Kareem Al-Anaibi Dr.

UAEU Law Journal

This paper questions whether the current approach of human rights bodies with regard to the positive procedural obligations is valid according to both, the domestic legal standards of states, and the mandate given to them in the conventions. It raises important criticisms about the capability of human rights bodies to effectively fulfill their newly assumed task of ordering and supervising prosecutions and punishments in criminal matters. It seems clear that the domestic justice systems of states bear the primary responsibility to bring violators of the right to life and other human rights to justice and action by human rights bodies …

Titrisation Et «Sukukisation» En Droit Tunisien, Nizar Hamrouni Dr.

UAEU Law Journal

Banks and financial institutions sometimes have to invest the debts they owe to others because they need money by transferring them to others through many means, the most important of which is securitization, which is the transfer of debts to a mutual debt fund in exchange for tradable securities in the market. However, securitization in this commercial form led to the transfer of debt-related risks to the financial market, which actually caused the global financial crisis of 2008.

Therefore, sukuk represents the Islamic alternative to securitization in terms of its subjection to Islamic controls, the most important of which is …

The Fine For The Crime Of Issuing A Cheque Without A Balance Between The Ordinary And The Relative In The Algerian Legislation, Bassim Chihab Prof.

UAEU Law Journal

The fine stipulated in Article 374 of the Algerian Penal Code took a special place in both the judiciary and legal jurisprudence, as the legislator made it specific to the value of the cheque or the decrease in the balance. The judiciary described it as a mandatory complementary punishment, and this resulted in important consequences, as it is not valid to rule on it alone, reprieve or reduce it. In view of the developments in the punitive policy, the Algerian judiciary, represented by the Supreme Court, considered this fine as an original penalty, and everything related to this description was …

The Poor Man's Problem In Bankruptcy, Rylee Stanley

St. Mary's Law Journal

No abstract provided.

Era Of Confusion: The State Of Patent Eligibility Jurisprudence And The Need For Intervention, Alyssa Boggs

St. Mary's Law Journal

No abstract provided.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Resurrection, Bassim Al Shaker

Northwestern Law Journal des Refusés

No abstract provided.

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.