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Articles 1 - 10 of 10
Full-Text Articles in Law
The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman
The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman
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Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …
Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp
Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp
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One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.
Intellectual history in the United States went into decline because …
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
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It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Therapeutic Jurisprudence, Barbara A. Babb, David B. Wexler
Therapeutic Jurisprudence, Barbara A. Babb, David B. Wexler
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Therapeutic jurisprudence, developed in the late 1980s, is a field of inquiry. It is a lens through which to examine the effects of substantive laws, legal rules, Iegal procedures, and the behavior of legal actors, including judges, lawyers, court personnel, and service providers, on the psychological and emotional well·being of justice system participants, including the Iegal actors themselves. Therapeutic Jurisprudence is a perspective or framework, and its use suggests the need to conduct empirical research to determine whether outcomes resulting from the application of substantive laws, legal rules, and legal procedures and from the behavior of legal actors have therapeutic …
Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger
Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger
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This essay, adapted from the video presentation available on Vimeo as #89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative — of a decline in pleading liberality from Conley to Twombly to Iqbal — is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope, through the video presentation, to introduce a new visual format for academic scholarship that …
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman
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No abstract provided.
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
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Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
Discretion In Class Certification, Tobias Barrington Wolff
Discretion In Class Certification, Tobias Barrington Wolff
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A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or …
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas
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No abstract provided.
Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan David Doerfler
Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan David Doerfler
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In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court explained that, within the domain of unclear agency-administered statutes, a federal court is subordinate to an administering agency. When an administering agency speaks authoritatively, federal court practice reflects this. When an agency speaks only informally, however, federal court practice does not. Specifically, when construing an agency-administered statute absent an authoritative agency interpretation, a federal court errs, given its subordinate status, when it exercises independent judgment concerning what interpretation is best. Instead, that subordinate status requires a court to predict what authoritative interpretation the administering agency …