Law Commons^™

Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt

Donald E. Bello Hutt

Champions of judicial review of legislation have defended this institution even before John Marshall decided Marbury v. Madison in 1803. Nevertheless, those defenses have to face with several difficulties, both practical and abstract. The aim of this paper is to analyze those difficulties and the context in which the defenses have been successful. We shall discuss the origins of judicial review in the work of James Iredell, Alexander Hamilton and John Marshall in order to introduce not only the first defenses of judicial review, but to fix the political context and dominant constitutional philosophy at their time: departmentalism and popular …

Efficiency Themes In Tort Law From Antiquity, M Stuart Madden

M Stuart Madden

Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes

Warren S Grimes

The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of efficiency of judicial proceedings and fairness to nonresidents than the immunity from service of process doctrine. The article proposes that the immunity from service of …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

The Rebirth Of Dependence: Offering An Alternative Understanding Of Financial Crisis, Ciara Hackett

Ciara Hackett

Dependency theory situated within the broader field of development studies draws on Marxist inspired theories of development and tends to oppose the neo-liberalism interpretation of the markets that is prevalent today. In considering the global system as a mixture of dependent relationships, it goes beyond inter-dependence, suggesting that such relationships are unequal.

The financial crisis of 2007 – 2010 has provided academics and commentators with a unique environment to debate, discuss and analyse our current understanding of the global financial system, the relationships within and the role of entities such as the multi-national corporation (MNC). This article takes dependency theory …

Antidiscrimination Law And The Multiracial Experience: A Reply To Nancy Leong, Tina F. Botts J.D., Ph.D.

Tina F Botts J.D., Ph.D.

Nancy Leong’s thesis, in “Judicial Erasure of Mixed-Race Discrimination,” is that antidiscrimination law should make a switch from defining race “categorically” to defining it in terms of the perception of the would-be discriminator so as to better accommodate claims of multiracial discrimination and so as to better achieve what Leong sees as the goals of antidiscrimination law, i.e., the promotion of racial understanding, and the elimination of racism and racial discrimination. But, while Leong’s goals are admirable, the method she proposes for achieving these goals will not succeed. Antidiscrimination law cannot operate to promote racial understanding, or to eliminate racism …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …

Fragmenting The Judiciary: Potential Ideological Effects Of Shifting Implementation Of Supreme Court Doctrine From Federal Courts To State Courts, Ryan Walters

Ryan Walters

More than ever, the Supreme Court of the United States can rely on an army of life-tenured judges on lower federal courts to implement the doctrines it develops on statutory and constitutional issues. Those judges are shielded from public opinion on controversial rulings, and recent research has shown that the Supreme Court itself is more likely to be affected by elite opinion than that of the public.

Despite checks and balances being a centerpiece of the constitutional order, the increasing size and jurisdictional scope of the federal judiciary, combined with its lack of political accountability, has led to a increase …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Aaron Christopher Bryant

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite – as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell’s was that such abuse of language – which in his novel he labeled “Newspeak” -- would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical …

Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan

Richard O. Morgan

The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Is An Inviolable Constitution A Suicide Pact? Historical Perspectives On An Overriding Executive Power To Protect The Salus Populi, Ryan P. Alford

Ryan P Alford

The Article posits that every constitutional order within the Western legal tradition that influenced the Framers recognized the necessity of control over executive emergency powers. It responds to the work of scholars such as Michael Stokes Paulsen, John Yoo, Eric Posner, and Adrian Vermuele, who have used historical arguments to justify strong claims about unbridled presidentialism in national security matters.

The Article demonstrates that it has always been recognized that one of the fundamental purposes of a constitution (written or unwritten) is to provide a framework for the exercise of executive power. It details how, throughout history, legal opinion has …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …

The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth

John Lunstroth

Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, …

Keeping The Inference In The Adverse Inference Instruction: Why Federal Courts Cannot—And Should Not—Give The Instruction Based On The Spoliator’S Negligence, William G. Lambert

William G. Lambert

The adverse inference instruction is one tool that a judge has to combat spoliation, the destruction of evidence. The instruction allows a jury to infer that a party destroyed evidence because that evidence was harmful to the party’s case. Traditionally, courts would give the instruction only when the spoliator acted with bad faith. Since the 1990s, however, some federal courts and many scholars have argued that a spoliator’s negligent destruction of evidence should suffice to allow courts to give an adverse inference instruction. As a result of this shift, the circuits are now split on the level of mental culpability …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

The Constitutional Referendum Of 1866: Andrew Johnson And The Original Meaning Of The Privileges Or Immunities Clause, Kurt T. Lash

Kurt T. Lash

Fourteenth Amendment scholars commonly assume that there is a relative silence in the historical record regarding public discussion of the proposed Amendment. In fact there was rich and extended public debate regarding the meaning of the Section One of the Amendment and the need to protect the privileges and immunities of citizens of the United States. These robust debates did not take place in state legislative assemblies, but in the campaign speeches, newspaper editorials and public documents accompanying the mid-term elections of 1866. Both Democrats and Republicans made the ratification of the Fourteenth Amendment a central part of their party’s …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

For Better And For Better: The Case For Abolishing Civil Marriage, Anibal Rosario Lebron

Anibal Rosario Lebron

This article examines – on the eve of next term U.S. Supreme Court’s review of same-sex marriage equality cases (The DOMA Cases) – whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or whether it would be better to simply abolish civil marriage in order to achieve such a goal. The piece explores why we still adhere to the unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children, and how we could achieve familial disestablishment (requiring the state to recognize the existence of …

Taming The "Unruly Horse" Of Public Policy In Wills And Trusts, Martin D. Begleiter

Martin D Begleiter

Issues involving “public policy” in wills and trusts (outside of cases involving the Rule Against Perpetuities) do not often arise. Most involve restraints on marriage and conditions encouraging divorce. Since such questions arise infrequently, courts usually were satisfied to state the rules in the area and ignore examination of the tests for and sources of public policy.

This situation is changing. Recent interest of clients in restrictions and incentive clauses, coupled with a new proposal in the Restatement (Third) of Trusts, has generated scholarly discussions on restraints on marriage and divorce. This article uses the Restatement’s new test as a …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

Losers' Law: A Metatheory for Legal Disappointments

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

"Losers"

We are all losers at one time or another. If you're in "economy class," you can't use the "business class" toilet, even if it's located just two steps in front of your seat. You must instead go to the back of the plane and use the toilets designated for economy class passengers. The operative rule prohibits you, as a mere economy class passenger, from exercising the much more convenient choice of using the business class …