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Full-Text Articles in Law
Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna
Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna
Scholarly Articles
Not available.
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller
Scholarly Articles
Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement …
Balancing Security And Liberty In Germany, Russell A. Miller
Balancing Security And Liberty In Germany, Russell A. Miller
Scholarly Articles
Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …
Reflections On The Nature Of Legal Scholarship In The Post-Realist Era, Marin Roger Scordato
Reflections On The Nature Of Legal Scholarship In The Post-Realist Era, Marin Roger Scordato
Scholarly Articles
This article presents a tightly organized and closely reasoned analysis of legal scholarship in the current post-realist era. Secure and well-defined within the formalist legal world of the nineteenth century, the practice of legal scholarship has been profoundly affected by the realist revolution of the early twentieth century and the instrumentalist view of law that now prevails in the twenty-first century. In response, legal scholars have been forced to dramatically alter the focus, the materials and the basic methods of their study. The practice of legal scholarship is currently occupied in a prolonged struggle to adapt to these changes and …
Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato
Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato
Scholarly Articles
At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.
Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning …
Juries, Judges And Democracy, (Reviewing Shannon C. Stimson, The American Revolution In The Law: Anglo-American Jurisprudence Before John Marshall (1990)), David K. Millon
Scholarly Articles
None available.
Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun
Conviction Without Imposition: A Response To Professor Greenawalt, Samuel W. Calhoun
Scholarly Articles
None available.
Objectivity And Democracy, David K. Millon
Objectivity And Democracy, David K. Millon
Scholarly Articles
As a response to skepticism about the possibility of objectivity in legal decisionmaking conventionalism posits the shared understandings of the legal profession (about method and the implications of doctrine) as the source of constraint in legal interpretation. In this Article, Professor Millon argues that conventionalism's proponents have failed to offer an adequate account of interpretive constraint, but that conventionalism properly understood can nevertheless provide a useful perspective on the possibility of objectivity in legal interpretation. This account locates interpretive constraint in the practices of the legal profession as a whole, acting as an "interpretive community" or constituting a distinctive "language-game" …