Law Commons^™

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

John Lunstroth

The scientific revolution (or radical Enlightenment) distorted the way we understand the law by causing legal concepts, such as the idea of state, to be split into a scientific (positivist) part and a prudential (moral) part. The Unity Thesis gives us tools for understanding the mechanisms by which that happened and for mapping routes to the future that may be better for everyone. I illustrate using the US Constitution. The idea of the constitution we receive is already a scientific concept, originating in the ideas of state and common good that prevailed well into the 17th century. On the one …

Judicial Efficacy – Providing Justice In State Courts In The Midst Of A Budget Crisis, Mark Gould

Mark Gould

No abstract provided.

Private Lawmaking And The Architecture Of Confidentiality In Nonprofit Boardrooms, Norman I. Silber

Norman I. Silber

Abstract

Placement of the boundary line between transparent and confidential deliberation inside a boardroom affects the quality, efficiency, and fairness of corporate decision making. Policies which do not insist upon confidentiality can improve the perceived legitimacy of decisions and of those who make them; confidentiality can improve the ability to implement decisions effectively. The degree of transparency facilitated by these policies affects the volume and quality of available information. In the nonprofit boardroom, the boundaries that are set by governance rules also reflect and give shape to institutional structures and cultural norms.

This article explores justifications for changing from a …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

College of Law - Faculty Scholarship

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

A Response To Harel And Porat: On The Inadmissibility Of The Aggregated Probabilities Principle, Doron Menashe Dr.

Mahdi Naamnee

This article is a response to an article by Alon Harel and Ariel Porat, recently published in the Michigan Law Review. In the article, the authors argue that, under certain conditions, courts should be permitted to convict a defendant in an unspecified offense. This possibility is meant to address situations in which there is no reasonable doubt that the defendant committed an offense, even though the prosecution failed to prove beyond reasonable doubt that the defendant committed any specific offense of which he was accused. The authors term this new decision principle as the Aggregated Probabilities Principle – APP.

In …

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Legal Subsidiarity And Constitutional Rights: A Reply To Aj Van Der Walt, Karl E. Klare

Karl E. Klare

In South African constitutional jurisprudence, “legal subsidiarity” is a theory of the appropriate relationship between and hierarchy among various sources of law, particularly the Constitution, statutes, and the common law. Core tenets of the theory are that courts should avoid making a constitutional decision if a matter can be decided on a non-constitutional basis; that courts should ordinarily defer to legislation; and that courts should avoid any tendency to proliferate separate tracks or sub-systems of law (e.g., courts should not create parallel causes-of-action or remedies respectively grounded, respectively, on the Constitution itself, legislation, and/or the common law). This article generally …

Getting Clear On The Originalism Debate: Is Originalism A Theory Of Constitutional Interpretation Or A Normative Rule Of Law?, Judy Hensley

Judy Hensley

The accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the …

The Great Recession And The Rhetorical Canons Of Law And Economics, Michael D. Murray

Law Faculty Publications

THE GREAT RECESSION AND THE RHETORICAL CANONS OF LAW AND ECONOMICS, by Michael D. Murray

Abstract

The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the "Chicago School"—because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School's positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and other financial practices …

Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas

Indiana Law Journal

No abstract provided.

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

All Faculty Scholarship

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …

The Plenary Power Immigration Doctrine: The Post 9/11 Hijacking Of State Legislatures, Geordan S. Kushner

Geordan S Kushner

The Supreme Court has determined Congress’ authority over immigration policy to be one of its plenary powers. Classifying immigration as a plenary power effectively precludes any external involvement and/or interference from any other entity. From the early 1900s and into the 21st Century, Congressional plenary authority over immigration had come to be expected and desired in the United States. However, one event changed this, essentially rendering that power over immigration unconstitutional when taken in light of other doctrines the Court has iterated.

The event that brought about this transformation was the terrorist attacks of September 11, 2001. The attacks transformed …

A Line In The Sand: The Affair Between Henry Ii And Thomas Becket, Deana Perry

Deana Perry

No abstract provided.

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Punishment's Justification, Jeffrey T. Renz

Jeffrey T Renz

Kant’s late 18th Century articulation of retribution and Bentham and Mill’s 19th Century theory of deterrence have survived as the chief justifications for punishing criminals. The two have always been in competition, despite some attempts (chiefly by John Rawls and H.L.A. Hart) to have one serve the other.

The debate between retributivists and utilitarians has recently taken on new life. See C. Flanders, Retribution and Reform, 70 Md. L. Rev. 8 (2010); D. Gray & J. Huber, Retributivism for Progressives: A Reply to Professor Flanders, 70 Md. L. Rev. 141 (2010); D. Markel, Bentham on Stilts: The Bare Relevance of …

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

Dissecting Axes Of Subordination: The Need For A Structural Analysis, Darren Lenard Hutchinson

Darren L Hutchinson

No abstract provided.

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Donald G Gifford

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …

Copyright And Moral Norms, Alina Ng

Alina Ng

The role normative principles such as morality and ethics play in a legal system is a highly contentious point in jurisprudence and legal theory. Scholars and philosophers have often disagreed on whether laws should reflect and incorporate moral and ethical norms. The idea that there could be a necessary connection between law and objective morality has been forthrightly rejected by some jurists because of the heterogeneity of social views and beliefs about what is right and wrong conduct. This paper challenges the assertion by legal positivism that morality cannot be incorporated into legal analysis because they obfuscate analytical thinking about …

Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison

Dalhousie Law Journal

In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …

Standing On The Edge: Standing Doctrine And The Injury Requirement At The Borders Of Establishment Clause Jurisprudence, Mary A. Myers

Vanderbilt Law Review

The very first line of the Bill of Rights provides that "Congress shall make no law respecting an establishment of religion." This line, the Establishment Clause of the First Amendment, was motivated by the history of religious persecution that drove thousands of adherents of minority faiths in Europe to the New World to seek refuge to practice their own faith, free from the compulsion of state-established religion. The Establishment Clause remains relevant today, and the U.S. Supreme Court has been active in hearing cases involving it. For purposes of determining standing-that is, whether an individual or organization meets certain constitutional …

Posner’S Pragmatism And The Turn Toward Fidelity, Edward Cantu

Faculty Works

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. This article discusses the current state of legal pragmatism, with a focus on the archetypal species espoused by Judge Richard Posner, and asks whether it has proven itself capable of contributing anything …

A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski

Alani Golanski

The Overlap Of Tax And Financial Aspects Of Real Estate Ventures, Bradley T. Borden

Bradley T. Borden

This article examines the effect partnership tax law has on financial aspects of real estate ventures. It introduces the relevance of the aggregate and entity views of tax partnerships (i.e., LLCs, LPs, and other partnerships) and demonstrates how those views can greatly affect financial projections for each of the members of a real estate venture. It also demonstrates how financial calculations can vary significantly depending upon how closely analysts track a tax partnership’s allocation method. Finally, the article serves as a primer for tax practitioners who are unfamiliar with the financial tools that are so prevalent in real estate analysis, …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Delayed Justice: A Case Study Of Texaco Arnd The Republic Of Ecuador’S Operations, Harms, And Possible Redress In The Ecuadorian Amazon, Suraj Patel

Suraj Patel

Multinational corporations engaging in natural resource extraction are often enticed by nascent foreign regulatory regimes and private dispute settlement mechanisms intended to induce investment. The result of a complicit government and poor operational practices can be environmental devastation and widespread human rights violations for which there is little redress. This paper analyzes the challenges inherent in using private dispute resolution mechanisms to hold corporations accountable for regulatory violations through the lens of Texaco’s 30-year operations in the Ecuadorian Amazon and the Aguinda v Chevron litigations in New York and subsequently Ecuador. The case represents the one of the most significant …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

Why Harlan Fiske Stone (Also) Matters, Eric H. Schepard

Eric H Schepard

Harlan Fiske Stone has been largely overlooked in the recent legal literature even though his legacy should influence how we resolve contemporary legal problems. This article examines Stone’s archived correspondence, his speeches and opinions, and numerous secondary sources to demonstrate why he is more important now than at any time since his death in 1946. As Attorney General from 1924-25, Stone’s decision to prohibit the Bureau of Investigation (BI, today’s FBI) from spying on domestic radicals established a framework that should guide the troublesome relationship between domestic intelligence and law enforcement that reemerged after September 11, 2001. As an Associate …

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

Rodger Citron

No abstract provided.