Law Commons^™

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz, Derek Stafford

Law & Economics Working Papers Archive: 2003-2009

Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure—operationalized as the professional and social connections between judicial actors—partially directs outcomes in the hierarchical federal judiciary.

Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its nature. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely …

Health Law’S Coherence Anxiety, Theodore Ruger

All Faculty Scholarship

Academic health law is often said to suffer from a "law of the horse" problem, or, more particularly, to lack various dimensions of theoretical coherence. In conventional legal academic discourse, the "coherence" ideal prioritizes a cluster of attributes, all of which health law lacks: sparse conceptual singularity, a reductionist focus on particular legal forms, institutional centralization, and historical determinism and orderly development of a legal field. Health law is a singularly poor fit with this traditional model of field coherence. It is a mishmash of various legal forms, applied by divergent and often colliding institutions, and has developed much more …

The “Institutional Turn” In Jurisprudence: Critique And Reconstruction., Andres Palacios Lleras

Andrés Palacios Lleras

This paper engages in a inquiry into the roles that courts play within the legal system, given that judges are interdependent interpreters of legal rules that are boundedly rational and, arguably, politically biased. Contemporary authors claim that, although these two conditions play an important role in interpretation, contemporary theories in jurisprudence have not addressed them properly. Their assessments raise legal issues that are very significant; given the fact that judges are boundedly rational and tend to display political biases, how should they interpret legal rules? Is it best for them to interpret these rules in a formalist fashion, without resorting …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …