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Selected Works

Jurisprudence

2017

Articles 1 - 28 of 28

Full-Text Articles in Law

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld Nov 2017

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Robert Steinfeld

No abstract provided.

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Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke Nov 2017

Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke

Anthony O'Rourke

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our …

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Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish Nov 2017

Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish

Tara Melish

An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.

This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of authors, …

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Res Judicata As Requisite For Justice, Kevin M. Clermont Nov 2017

Res Judicata As Requisite For Justice, Kevin M. Clermont

Kevin M. Clermont

From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort …

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Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. Mcadam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey Nov 2017

Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. Mcadam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey

Malcolm Feeley

The final panel discussion at the National Forum on Judicial Independence was moderated by Jack Ford, host of the syndicated Public Broadcasting System program, Inside the Law. The discussion explores topics of judicial independence in a manner designed for use with the public at large and formed the basis for the onehour PBS program, “Judicial Independence: The Freedom to Be Fair.” Panelists were Leo Bowman, chief judge of the District Court in Pontiac, Michigan, Kevin Burke, district judge and former chief judge of the Hennepin County (Minn.) District Court, Michael Cicconetti, judge of the Painesville (Ohio) Municipal Court, Malcolm Feeley, …

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Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley Nov 2017

Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley

Malcolm Feeley

The fourth panel discussion at the National Forum on Judicial Independence explores the way the public thinks about judicial independence and ways in which the media and members of the bar may affect judicial independence. The discussion was led by then-AJA secretary Steve Leben, a state general-jurisdiction trial judge from Kansas. Panelists were John Russonello, a pollster and consultant to nonprofit organizations, political campaigns, and other clients, and Malcolm Feeley, professor at the Boalt Hall School of Law at the University of California-Berkeley. The National Forum on Judicial Independence was supported by a generous grant from the Joyce Foundation of …

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In (Faint) Praise Of The Large Aps: Comments On Marc Galanter, Planet Of The Aps, Meir Dan-Cohen Oct 2017

In (Faint) Praise Of The Large Aps: Comments On Marc Galanter, Planet Of The Aps, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.

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The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh Oct 2017

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Charles C. Jalloh

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the …

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Semiotic Disobedience, Sonia K. Katyal Oct 2017

Semiotic Disobedience, Sonia K. Katyal

Sonia Katyal

Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term “semiotic democracy” to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media. A semiotic democracy enables the audience, to a varying degree, to “resist,” “subvert,” and “recode” certain cultural symbols to express meanings that are different from the ones intended by their creators, thereby empowering consumers, rather than producers. In this Article, I seek to introduce another framework to supplement Fiske’s important metaphor: the phenomenon of “semiotic disobedience.” Three contemporary cultural moments in …

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Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis Aug 2017

Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis

Charles C. Jalloh

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …

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Court Review: Volume 39, Issue 3 - Trial By Metaphor: Rhetoric, Innovation, And The Juridical Text, Benjamin L. Berger Jul 2017

Court Review: Volume 39, Issue 3 - Trial By Metaphor: Rhetoric, Innovation, And The Juridical Text, Benjamin L. Berger

Benjamin L. Berger

The judicial decision-making process is not one for which resolution arises from counting, measuring, or weighing. Rather, the courtroom is a field for debate about the interpretation and application of values as embodied in or reflected by the law. Decisions reached in court are judgments and not mathematical conclusions in that the inherently contestable nature of the issues at stake precludes an outcome that is selfevident to all. As such, although there is an element of factfinding that emerges in a judicial opinion, there is also always a subjective valuation of the principles at stake; to draw on Socrates, there …

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Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore Jul 2017

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Malinda L. Seymore

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

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The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones Jun 2017

The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones

Renee Jones

This Article challenges corporate governance theorists’ standard assumptions regarding the rationality of business leaders. It reviews scholarly research that documents the presence of irrational actors among senior corporate managers and considers the impact these executives might have on corporations and society. The Article focuses analysis on psychological literature that explores why risk-related decision-making often goes wrong.

Research shows that many individuals have a dysfunctional approach to risk that leads them to engage in self-destructive conduct. A non-trivial number of individuals with problematic personality traits work at high levels of major corporations where they have the capacity to cause significant harm. …

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Representing Mexican Clients In U.S. Courts In Claims Of Liability In Industrial Accidents, Ted Occhialino Jun 2017

Representing Mexican Clients In U.S. Courts In Claims Of Liability In Industrial Accidents, Ted Occhialino

Ted Occhialino

No abstract provided.

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Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky Jun 2017

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

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An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky Jun 2017

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

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The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman May 2017

The President’S Pen And The Bureaucrat’S Fiefdom, John C. Eastman

John C. Eastman

Perhaps spurred by aggressive use of executive orders and “lawmaking” by administrative agencies by the last couple of presidential administrations, several Justices on the Supreme Court have recently expressed concern that the Court’s deference doctrines have undermined core separation of powers constitutional principles.  This article explores those Justice’s invitation to revisit those deference doctrines and some of the executive actions that have prompted the concern.

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I Share, Therefore It's Mine, Donald J. Kochan Apr 2017

I Share, Therefore It's Mine, Donald J. Kochan

Donald J. Kochan

Uniquely interconnecting lessons from law, psychology, and economics, this article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to the sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals, then, is that the property system is well suited to create recognizable and enforceable ownership norms that include the rights …

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Double Sovereignty In Europe? A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju Mar 2017

Double Sovereignty In Europe? A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju

Vlad Perju

Jürgen Habermas’s influential account of the transnationalization of democracy is typically seen as a bold attempt to articulate the political-philosophical foundations of European integration. Habermas posits an identity split between individuals as citizens of their nation states and (the same) individuals as members of the future European Union. According to the dual sovereignty thesis, nation states and the EU are co-original and co-determinate.

I challenge this conception on two grounds. First, split identity is a source of fragmentation that subverts the transnationalization of democracy. It would be irrational for EU citizens to partake in a project that empowers states to …

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Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall Dec 2016

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

There is in the criminal law perhaps no principle more canonical than the fault principle, which holds that one may be punished only where one is blameworthy, and one is blameworthy only where one is at fault. Courts, criminal law scholars, moral philosophers and textbook authors all take the fault principle to be the foundational requirement for a just criminal law. Indeed, perceived threats to the fault principle in the mid-Twentieth Century yielded no less an achievement than the drafting of the Model Penal Code, which had as its guiding purpose an effort to safeguard faultless conduct from criminal condemnation. …

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Construction, Originalist Interpretation And The Complete Constitution, Richard Kay Dec 2016

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

 In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public …

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The Many Saliences Of Justice Michael D. Ryan: A Comparative Empirical Analysis Of Concepts Of Salience As Applied In State Appellate Courts, Scott Devito Dec 2016

The Many Saliences Of Justice Michael D. Ryan: A Comparative Empirical Analysis Of Concepts Of Salience As Applied In State Appellate Courts, Scott Devito

Scott DeVito

This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael D. Ryan by examining the impact of his work on Arizona law through the lens of his “most important” opinions. As with all things touched by Justice Ryan it has become something greater than its initial purpose. The Author began this project by surveying three hundred seven Arizona judges about Justice Ryan’s published opinions. The results of this survey were quite surprising. Rather than identifying a common core of important opinions, the survey identified two mutually exclusive sets of important opinions: one …

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Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman

Stephen M. Feldman

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades.  Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances.  Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self.   But the three traditional rationales are incompatible with our digital age.  In particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society.  The time for a new rationale has arrived.  The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

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Proportionality And Stare Decisis: Proposal For A New Structure, Vlad Perju Dec 2016

Proportionality And Stare Decisis: Proposal For A New Structure, Vlad Perju

Vlad Perju

This paper argues that a change in the formal structure of proportionality analysis can increase the chance of proportionality’s successful transplant into American constitutional law. The change takes the form of an additional and new last step to the existing multi-prong inquiry, which would require judges to assess the outcome of the legal analysis at the previous stages against the disruption that outcome would cause to settled constitutional doctrine. The greater the departure from constitutional precedent, the stronger must be the reasons that justify it. By analogy to Robert Alexy’s “weight” analysis at the balancing stage, I label this new …

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Executive Action And Nonaction, Tom Campbell Dec 2016

Executive Action And Nonaction, Tom Campbell

Tom Campbell

Action by the executive can be challenged by a party with standing, and there is usually no shortage of such parties. The executive’s failure to act, however, is much more difficult to submit to judicial scrutiny. I propose that standards for reviewing such nonaction are available under precedent of the Administrative Procedure Act, and under severability analysis. That is, a reviewing court can determine whether the executive’s failure to enforce part of a law leaves the rest of the law to operate meaningfully as Congress intended (akin to severability analysis), and APA precedent can guide courts to determine whether nonaction …

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Stephenmfeldmannothingnew.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmannothingnew.Pdf, Stephen M. Feldman

Stephen M. Feldman

Recent events have seemed to inject politics into American judicial institutions.  As a result, many observers worry that the Supreme Court, in particular, has become politicized.  According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns.  These worries arise from a  mistaken assumption: that law and politics can be separated and independent in the process of judicial decision making.  But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic.  Adjudication in accord with a pure rule …

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Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman

Stephen M. Feldman

Postmodern jurisprudence was all the rage in the 1990s.  Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves--independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article.  Then Fish and Schlag turned on each other.  Each attacked the other for making the same mistake: harboring a modernist self.  I revisit this skirmish for two reasons.  First, it helps explain the current moribund state of postmodern jurisprudence.  If two of the leading postmodernists could not avoid embedding …

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The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana Dec 2016

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

The evolution of tort law in former British colonies is not only fascinating; it also holds clues into the age old question of whether law or any discrete area of law can be universal. The exploration into doctrinal divergences and convergences is part of a larger quest: to capture the theoretical underpinnings of tort law and, in that process, discover the universal core of tort law, if there is one. For example, is the central purpose of tort law efficient resource allocation, corrective justice, or simply a compensatory system for wrongs? To answer these questions, theorists have generally considered tort …

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