Law Commons^™

Test Your Legal Literacy By Answering One Question, John M. Bosco

John M Bosco

No abstract provided.

Stopping For Death: Re-Framing Our Perspective On The End Of Life, Ruth C. Stern, J. Herbie Difonzo

J. Herbie DiFonzo

How we die is increasingly becoming a matter of law and public policy. We grapple with issues of patient autonomy, the proper parameters of doctor-patient discussions on the end of life, the right to hasten death, and the right to control our own medical treatment. But it is physicians and patients, not judges and legislators, who are the principal actors in events at the end of life. Palliative medicine is just beginning to probe the multi-dimensional totality of suffering in dying and seriously ill patients. What we learn will influence our options at the end of life and tell us …

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez

Armando G. Hernandez

A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Painting Preemption With The Wrong Brush: The Misapplication Of The Preemption Doctrines In Von Saher V. Norton Simon Museum Of Art, Alexis H. Rossman

Alexis H. Rossman

Adolf Hitler and the Nazis looted thousands of works of art throughout World War II. After the war, many pieces were not returned to the rightful owners but instead remained in public and private collections throughout the United States and abroad. California enacted California Code of Civil Procedure Section 354.3 in response to difficulties encountered by plaintiffs seeking to recover these pieces. The statute created a forum in California courts for plaintiffs to bring claims as rightful owners of Holocaust-era artwork. The Ninth Circuit recently found that this statute was preempted by the federal government’s exclusive power to conduct foreign …

Responsibility Sharing And The Rights Of Refugees: The Case Of Israel, Tally Kritzman-Amir

Tally Kritzman-Amir

This paper aims at examining the Israeli refugee law and practice through the lens of responsibility sharing. We will offer a critical analysis of the implementation of the Israeli asylum regime, showing the impact this regime has on responsibility sharing. We will also analyze the discourse on the issue of responsibility sharing, however limited in scope it is. This discussion emerges from an awareness of the fact that Israel is in a unique geopolitical situation, due to its proximity to Africa and being the only economically-stable democracy in the region. Israel is also embroiled in an ongoing conflict with its …

Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni

Francisco J Benzoni

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …

Essay: Justice Sotomayor On The Supreme Court: A Boon For Business?, Dana M. Muir, David Baumer, Stephanie Greene, Gideon Mark, Robert E. Thomas

Dana M. Muir

In this essay, five business law professors with specialties in five different doctrinal areas analyze Justice Sonia Sotomayor’s jurisprudence in those areas and consider the implications of her appointment to the Supreme Court. Each of the areas, intellectual property, antitrust, securities, ERISA, and employment law, involves an area of federal law of significant importance to businesses. Although employment law also is a matter of state law, this essay focuses on the federal employment law statutes. Based on our analysis, we believe that Justice Sotomayor will approach business cases from a neutral perspective. Overall, we find support for the generally accepted …

Natural Law, Positive Law, And Conflicting Social Norms In Harper Lee's To Kill A Mockingbird, Maureen E. Markey

Maureen E. Markey

This Article explores the complex interaction of natural law, positive law, and conflicting social norms in To Kill a Mockingbird by Harper Lee, one of the most widely read works in all of American literature and a classic of the Law and Literature canon. Because Atticus Finch, more than any real life lawyer, exemplifies both the personal and professional identity that most lawyers strive for, the novel has been hugely influential in many lawyers= lives. In a profession often stereotyped as greedy, amoral, and uncaring, Atticus represents transcendent moral values, traditionally recognized as a natural law view of the world, …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis

Eugene L. Morgulis

This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …

Structure And Precedent, Jeffrey C. Dobbins

Jeffrey C. Dobbins

The standard model of vertical precedent is part of the deep structure of our legal system. The rules governing that model are largely intuitive, often taught only in passing at law school, and rarely addressed by positive law. While the application of these rules of precedent can be difficult in practice, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. A Ninth Circuit opinion, for instance, is binding on district courts within the Ninth Circuit and on subsequent Ninth Circuit panels; it is not binding on Second Circuit panels. …

Tort Law As A Law Of Civil Recourse, John Goldberg

John Goldberg

Tort Law as a Law of Civil Recourse Abstract Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficient deterrence, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of these loss-based frameworks. It is wrongs, not losses, that lie at the foundation of tort law. Tort law affords victims of wrongs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s …

This Lemon Comes As A Lemon. The Lemon Test And The Pursuit Of A Statute’S Secular Purpose., Josh Blackman

Josh Blackman

Lemon is a curious fruit. The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong of the Lemon Test, which queries whether a statute has a “secular purpose.” While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means. Before piercing the citric skin of the purpose prong of the Lemon test, I consider intentionalism and purposivism as jurisprudential schools of thought. What is the purpose behind …

Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …

The Future Of Harmonization: Soft Law Instruments And The Principled Advance Of International Lawmaking, Robert A. Pate

Robert A Pate

With vast amounts of financial and intellectual capital already being spent on international harmonization, inefficiencies infecting the lawmaking process render it ineffective and threaten the goodwill of the whole enterprise. This paper represents a synthesis of some of the most meaningful criticism about the perceived failures of the classic vehicle for harmonization—international conventions. In it, we have highlighted these failures, looked for their underlying causes, and searched for compelling soft law alternatives. This paper seeks to show that, above all, conventions suffer from over ambition. By intervening in the legal marketplace, underestimating national distrust and legal conflict, and insisting on …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

To "Kill The Indian ... And Save The Man": A Constitutionalist Critique Of Civic Education, Mark E. Brandon

Mark E Brandon

The point of this article is to consider the implications of civic education in a constitutionalist order. The article begins with a study of the earliest attempts at civic education in North America: the various efforts by Europeans and later by agents of the United States to “civilize” the native tribes through education. The article then presents approaches of three proponents of civic education today – Lynne Cheney, Amy Gutmann, and Stephen Macedo – comparing their aims and methods with programs whose targets were children of the tribes. Finally, the article assesses the compatibility of programs for civic education with …

A Civic Critique Of Democracy: Civic Organizing As The Generating Force Of A Civic Concept Of Law, Palma Joy Strand

palma joy strand

A Civic Critique of Democracy: Civic Organizing as the Generating Force of a Civic Concept of Law Palma Joy Strand ABSTRACT Judge Sonia Sotomayor’s controversial “wise Latina” comment embodies the view that law is socially constructed—that “we” make it and that it thus may vary according to who “we” are. Current theories of “popular constitutionalism,” “democratic constitutionalism,” and “demosprudence” take this several steps further and begin to explore the idea that the “we” that makes constitutional law is not just judges but society more broadly. These theories matter because they envision an active role for citizens in law creation, but …

Judging In Bad Faith, Eric J. Miller

Eric J. Miller

Must judges apply the law “sincerely” or “in good faith?” H.L.A Hart famously argued that, if legal officials are to require conformity to the law from its subjects, they must accept the law as valid. Hart, however, stopped short of demanding that the personal motivations of legal officials match their public utterances.

In this article, I argue that a judge may be motivated to decide cases for reasons that have nothing to do with the law. Accordingly, the law is systematically de-centered from her calculation of how to decide. Legal norms operate only to constrain or justify her independently motivated …

Reason And Reasonableness In Review Of Agency Decisions, Jeffrey A. Pojanowski

Jeffrey A Pojanowski

Provisions of federal statutes often incorporate common law terms and concepts. Federal courts interpreting these provisions usually do not look to the law of any particular jurisdiction, but rather apply general rules and principles of the common law. Federal agencies also administer statutes with embedded common law, and it is unclear how much respect, if any, reviewing courts should give to agency interpretations of those incorporated rules and principles. This Article examines this problem with the aim of situating deference doctrine in broader debates about the character of legal reasoning. Drawing on both common law theory and institutional analysis, this …

Tailoring Deference To Variety With A Wink And A Nod To Chevron: The Roberts Court And The Amorphous Judicial Framework For Review Of Agency Interpretations Of Law, J. Lyn Entrikin Goering

J. Lyn Entrikin Goering

In the 25 years since the Court issued its venerable opinion in Chevron, the Supreme Court has all but disregarded the judicial review provisions of the Administrative Procedure Act (APA), first enacted in 1946. From 1984 to 2000, Chevron took center stage as the most-cited opinion in administrative law. Beginning in 2000, the Rehnquist Court issued a series of decisions limiting the reach of Chevron. At the same time, the Court revived common law deference frameworks that predate the APA. Yet the Rehnquist Court failed to fully reconcile Chevron with its previous common law deference doctrines and with the APA’s …

No Longer A Vacuum, Corneliu Marian

Corneliu Marian

The article reviews the Scalia-Breyer debate on the use of foreign sources in three contexts. First, the article draws on the increasing interdependency between the American domestic judiciary and foreign legal institutions. By interpreting the Maher¬-case and the reaction of the Canadian judiciary, the author concludes that American jurisprudence may no longer operate on an isolationist basis. Second, the article draws on the Israeli debate on the use of torture in sensitive circumstances. The Israeli jurisprudence has a long-standing experience in interpreting when torture should be sanctioned. American jurisprudence will be improved if it directly discusses the strengths and weaknesses …

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

Law, Truth, Meaning And Lies: A Metaphysical Look At Berea College V. The Commonwealth Of Kentucky, Eric Z. Lucas

Eric Z. Lucas

Berea College was a private school located in Berea Kentucky where, since the late 1800's blacks and whites had been taught side by side as students. In 1904 the Kentucky legislature passed a statute making it unlawful to "maintain or operate any college, school, or institution where persons of the white and Negro races are both received as pupils for instruction." Shortly after passage of the act, Berea College was indicted under the statute and at trial was found guilty of violating the act. The college appealed saying that this statute violated its rights under the First (Freedom of Association) …

Inflation In Unjustified Enrichment Claims: Reflections From Abroad On The New Brazilian Civil Code, Aimite Jorge

Aimite Jorge

Inflation can be one of the risks assumed by the parties to a contract. But contractual terms may provide for monetary corrections (adjustments) to offset that risk in cases of regular inflation because the parties are in a bilateral agreement. The same may not hold true however for claims arising in unjustified enrichment because the parties are not necessarily in a bilateral agreement. They may find themselves in the position of two innocents because the events that brought about the decline of purchasing power of the currency were unconnected to them. In such cases, the change-of-position (loss of enrichment) defense …

Judging Jena's Da: The Prosecutor And Racial Esteem, Andrew Taslitz

Andrew E. Taslitz

In the Jena 6 case, six African-American high school students were arrested for assault charges allegedly arising out of a series of confrontations between black and white students stemming from a black student's sitting under the "white tree" on school grounds. The Jena prosecutor successfully arranged for one of the Jena 6 to be tried as an adult, where he was convicted and exposed to the potential of a very harsh sentence. The prosecutor did not, however, proceed, or not proceed as harshly, against several white students who were purportedly involved in violence or threats of violence against black students. …

The Exxon Valdez Case And Regularizing Punishment, Jeffrey L. Fisher

Jeffrey L Fisher

In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore …