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Full-Text Articles in Law
Aggregate Stare Decisis, Kiel Brennan-Marquez
Aggregate Stare Decisis, Kiel Brennan-Marquez
Faculty Articles and Papers
The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate echoing decades of scholarship-about the doctrine's role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect "neutral principles" that run orthogonal to a case's merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits by diagnosing the …
A Personal Report On Methodological Developments In Us Law, Stephen Utz
A Personal Report On Methodological Developments In Us Law, Stephen Utz
Faculty Articles and Papers
A survey of contemporary legal research in the United States must to some extent be personal and impressionistic. No one can see the entire landscape or has the expertise to evaluate everything in it. The pitfall of myopia is heightened by the enormous variety of current methods and results, the need to mention and evaluate areas of specialty in which things are going well or poorly, and publication biases that should not influence content but inevitably do. The already huge variety of books, journals, and commercial guides to particular legal subjects has been overshadowed by an uncountable array of electronically …
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Faculty Articles and Papers
In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …
Statutes And Democratic Self-Authorship, Kiel Brennan-Marquez, Paul W. Kahn
Statutes And Democratic Self-Authorship, Kiel Brennan-Marquez, Paul W. Kahn
Faculty Articles and Papers
In this Article, we argue that both sides of the usual debate over statutory interpretation-text versus purpose-rest on a common, but flawed, premise. Judges and scholars have assumed that legislative bodies are the authors of statutes. We disagree; instead, we argue that the people are the authors of statutes. Legislative bodies play an indispensable role in the process: they draft statutes. And courts play a similarly indispensable role: they interpret statutes. But ultimately, it is the polity-we, the people-that is responsible, as authors, for the content of the law.
This shift yields dramatic consequences. To date, no theory of statutory …
Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay
Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay
Faculty Articles and Papers
While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise …
Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav
Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav
Faculty Articles and Papers
This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for …
Americans And The Quest For An Ethical International Law, Mark Weston Janis
Americans And The Quest For An Ethical International Law, Mark Weston Janis
Faculty Articles and Papers
Foreign critics sometimes accuse Americans of taking a hypocritical stance on international law. They say we preach an ethical international law to others, but practice a selfishly utilitarian international law ourselves. Here is the remarkable opinion, given just last year, of a leading European international lawyer. Martti Koskenniemi, a distinguished Finnish scholar, is Professor of International Law at the University of Helsinki and a Global Professor of Law at New York University. Koskenniemi believes that the Europeans speak the language of universal international law, but: How differently the Americans see the world! Legalization, is just a policy choice, a matter …
The Transformation Of Modern Corporation Law: The Law Of Corporate Groups, Phillip Blumberg
The Transformation Of Modern Corporation Law: The Law Of Corporate Groups, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
Holmes And The Romantic Mind, Anne Dailey
Holmes And The Romantic Mind, Anne Dailey
Faculty Articles and Papers
No abstract provided.
Who's Afraid Of Functional Claims - Reforming The Patent Law's 112, 6 Jurisprudence, Mark Weston Janis
Who's Afraid Of Functional Claims - Reforming The Patent Law's 112, 6 Jurisprudence, Mark Weston Janis
Faculty Articles and Papers
No abstract provided.
Undead Laws: The Use Of Historically Unenforced Criminal Statutes In Non-Criminal Litigation, Hillary Greene
Undead Laws: The Use Of Historically Unenforced Criminal Statutes In Non-Criminal Litigation, Hillary Greene
Faculty Articles and Papers
Long after criminal laws have lost their vigor in the context for which they were drafted, they may rise again elsewhere. The American legal system has yet to develop a coherent policy delineating when or if historically unenforced penal statutes can be invoked in non-penal contexts. This issue is particularly evident in cases where the relevant laws are caught between shifting moral sentiments. Fornication, for example, remains illegal in many states,' but it is rarely prosecuted. Should one of the participants in this criminal act contract a sexually transmitted disease and sue her partner in tort, however, these disused statutes …
Increasing Recognition Of Enterprise Principles In Determining Parent And Subsidiary Corporation Liabilities, The, Phillip Blumberg
Increasing Recognition Of Enterprise Principles In Determining Parent And Subsidiary Corporation Liabilities, The, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz
Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod
Practical Polyphony: Theories Of The State And Feminist Jurisprudence, Carol Weisbrod
Faculty Articles and Papers
No abstract provided.
The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg
The Corporate Entity In An Era Of Multinational Corporations, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
The Corporate Personality In American Law: A Summary Review, Phillip Blumberg
The Corporate Personality In American Law: A Summary Review, Phillip Blumberg
Faculty Articles and Papers
No abstract provided.
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
The Epistemology Of Judging: Wittgenstein And Deliberative Practices, Thomas Morawetz
Faculty Articles and Papers
No abstract provided.
Why Is There Taylor V. Caldwell - Thre Propositions About Impracticability, Robert Birmingham
Why Is There Taylor V. Caldwell - Thre Propositions About Impracticability, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
Adherence To The Original Intentions In Constitutional Adjudication: Three Objections And Responses, Richard Kay
Adherence To The Original Intentions In Constitutional Adjudication: Three Objections And Responses, Richard Kay
Faculty Articles and Papers
No abstract provided.
A Rose By Any Other Word: Mutual Mistake In Sherwood V. Walker, Robert Birmingham
A Rose By Any Other Word: Mutual Mistake In Sherwood V. Walker, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
Holmes On Peerless: Raffles V. Wichelhaus And The Objective Theory Of Contract, Robert Birmingham
Holmes On Peerless: Raffles V. Wichelhaus And The Objective Theory Of Contract, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
The Jurisprudence Of The Connecticut Constitution, Richard Kay
The Jurisprudence Of The Connecticut Constitution, Richard Kay
Faculty Articles and Papers
No abstract provided.
Hart's Definition And Theory In Jurisprudence Again, Robert Birmingham
Hart's Definition And Theory In Jurisprudence Again, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham
Remarks On Probability In Law: Mostly, A Casenote And A Book Review, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
On What A Rule Is, Robert Birmingham
On What A Rule Is, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
The Neutrality Of Adherence To Precedent, Robert Birmingham
The Neutrality Of Adherence To Precedent, Robert Birmingham
Faculty Articles and Papers
No abstract provided.
The Generality Of Neutral Principles: A Game- Theoretic Perspective, Robert Birmingham
The Generality Of Neutral Principles: A Game- Theoretic Perspective, Robert Birmingham
Faculty Articles and Papers
No abstract provided.