Law Commons^™

The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora

Journal Articles

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, …

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …

Judicial Populism, Anya Bernstein, Glen Staszewski

Journal Articles

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …

Legal Corpus Linguistics And The Half-Empirical Attitude, Anya Bernstein

Journal Articles

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.

First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates …

Legal Positivism As A Theory Of Law’S Existence: A Comment On Margaret Martin’S "Judging Positivism", Jorge Luis Fabra-Zamora

Journal Articles

This comment critically examines the conception of legal positivism that informs Margaret Martin’s interesting and multilayered challenge against the substance and method of this intellectual tradition. My central claim is that her characterization of the substantive theory of legal positivism sets aside a more fundamental and explanatory prior dimension concerning the positivist’s theory of the existence of legal systems and legal norms. I also argue that her understanding of the positivist’s descriptive methodology as a nonnormative project is too demanding and overlooks both the relationships between law and morality recognized by contemporary legal positivists and the pivotal distinction between internal …

Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey

Journal Articles

Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.

The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis

Journal Articles

No abstract provided.

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose and …

Teaching The Lochner Era, Barry Cushman

Journal Articles

This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …

The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter

Journal Articles

Scholars have long been divided over the role, function, and significance, if any, of oral argument in judicial decision-making.' Federal courts seem similarly divided, as some circuits routinely grant oral argument in almost every case, while others grant oral argument in only a small fraction of appeals. This divide should not be dismissed as merely an idiosyncratic debate or as a response to excessive workload, particularly when one considers that approximately 53,000 appeals were filed in federal courts of appeals in the year ending September 30, 2016.2 Since the Supreme Court grants certiorari in only approximately eighty cases each year, …

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.

Truth And Politics: A Symposium On Peter Simpson's Political Illiberalism: A Defense Of Freedom., Gerard V. Bradley

Journal Articles

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about values are more involved with how persons' lives go than, perhaps, ever before.

Of course, any community which has …

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

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

Journal Articles

No abstract provided.

Why Law Matters For Our Obligations, Guyora Binder

Journal Articles

Political philosophers have long debated the problem of political and legal obligation: how the existence of a political community and its laws can affect our obligations. This paper applies Alon Harel’s argument that law has intrinsic value to this venerable problem. It interprets Harel’s argument as a Kantian claim that law enables us to treat our fellows with the respect they deserve, by requiring us not only to treat them decently, but to recognize decent treatment as their right.

Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud, Athena D. Mutua, Francisco Valdes

Journal Articles

This article marks the twentieth anniversary of Latina and Latino Critical Legal Theory or the LatCrit organization, an association of diverse scholars committed to the production of knowledge from the perspective of Outsider or OutCrit jurisprudence. The article first reflects on the historical development of LatCrit’s substantive, methodological, and institutional commitments and practices. It argues that these traditions were shaped not only by its members’ goals and commitments but also by the politics of backlash present at its birth in the form of the “cultural wars,” and which have since morphed into perpetual “crises” grounded in neoliberal policies. With this …

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith

Journal Articles

The dangers of “overcriminalization” are widely appreciated across the political spectrum, but confusion remains as to its cause. Standard critiques fault legislatures alone. The problem, however, is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness. Instead of narrowing ambiguous criminal laws to more appropriate bounds, courts frequently expand them, even when this ratchets up the punishment that offenders face, and fail to insist on proof of sufficiently culpable states …

The Jurisprudence Of The Hughes Court: The Recent Literature, Barry Cushman

Journal Articles

The balance of this Article is devoted, after a fashion, to an exploration of the extent to which the recent literature on the Hughes Court seeks to incorporate the internal point of view. In Part I, I seek to identify the historiographical premises undergirding each author’s treatment of the subject. In Part II, I explore how those historiographical premises are reflected in each author’s treatment of the substantive development of constitutional doctrine during the period. In Part III, I examine the ways in which those historiographical premises inform each author’s analysis of the causal forces driving that doctrinal development. Part …

Law As Fact And As Reason For Action: A Response To Robert Alexy On Law's 'Ideal Dimension', John M. Finnis

Journal Articles

Robert Alexy’s 2013 Natural Law Lecture, published in vol. 58 of the American Journal of Jurisprudence, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer’s and the participant’s perspective. It argues on this basis for a “non-positivist” theory of law that is “inclusive” in that it classifies some unjust laws as laws, but not all (and is thus not “super-inclusive”); it rejects the “exclusive non-positivism” that would treat every injustice in a law’s making or content as excluding it from the class of valid …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Precedent And Jurisprudential Disagreement, Amy Coney Barrett

Journal Articles

This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, "error" is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different …

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Journal Articles

Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, I contend that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method. My aim is to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. I seek to demonstrate that although certain consequences of deviating from precedent can be studied …

Piety And Profession: Simon Greenleaf And The Case Of The Stillborn Bowdoin Law School, 1850–1861, Alfred S. Konefsky

Journal Articles

In 1850, Bowdoin College turned to former Harvard professor Simon Greenleaf when it sought to establish a law school. Although the school did not materialize, Greenleaf wrote a remarkable report that reveals anxieties about the profession, competing visions of legal education, and controversies over the meaning of the science of law in antebellum New England.

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …