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Full-Text Articles in Law
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Brannon P. Denning
In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …
Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee
Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee
Ruth S Lee
Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …
A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller
A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller
Tonja Jacobi
How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form …
The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez
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 New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning
Brannon P. Denning
This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning--the usual focus of constitutional theory--and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in …