Law Commons^™

Narrative And Drama In The American Trial, Robert P. Burns

Faculty Working Papers

This short essay summarizes an understanding of the trial as a medium in which law is realized or actualized, rather than imposed or enforced. It suggests that we should pay close attention to the actual practices that prevail at trial, its "consciously structured hybrid" of languages and practices, if we want to understand the nature of law.

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato

Faculty Working Papers

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics.

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Moral Character, Motive, And The Psychology Of Blame, Janice Nadler, Mary-Hunter Morris Mcdonnell

Faculty Working Papers

Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor's intentionality, causal proximity to harm, and the harm's foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to …

The Limits Of Constructivism: Can Rawls Condemn Female Genital Mutilation?, Andrew Koppelman

Faculty Working Papers

The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A …

The New American Civil Religion: Lesson For Italy, Andrew Koppelman

Faculty Working Papers

American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

If The Shoe Fits They Might Acquit: The Value Of Forensic Science Testimony, Jonathan Koehler

Faculty Working Papers

The probative value of forensic science evidence (such as a shoeprint) varies widely depending on how the evidence and hypothesis of interest is characterized. This paper uses a likelihood ratio (LR) approach to identify the probative value of forensic science evidence. It argues that the "evidence" component should be characterized as a "reported match," and that the hypothesis component should be characterized as "the matching person or object is the source of the crime scene sample." This characterization of the LR forces examiners to incorporate risks from sample mix-ups and examiner error into their match statistics. But how will legal …

Safety First? The Role Of Emotion In Safety Product Betrayal Aversion, Jonathan Koehler, Andrew D. Gershoff

Faculty Working Papers

Consumers often face decisions about whether to purchase products that are intended to protect them from possible harm. However, safety products rarely provide perfect protection and sometimes "betray" consumers by causing the very harm they are intended to prevent. Examples include vaccines that may cause disease and air bags that may explode with such force that they cause death. Expanding research on betrayal aversion, this study examines the role of emotions in consumers' tendency to choose safety options that provide less overall protection in order to eliminate a very small probability of harm due to safety product betrayal. In five …

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

Aspects Of Deconstruction: The Failure Of The Word "Bird", Anthony D'Amato

Faculty Working Papers

Lawyers and judges often become impatient with those who dispute what they regard as the clear meaning of words. The meaning of words derives from the contexts in which they are employed, and we can never be certain of the context because we cannot enter into the minds of other persons to see the contexts to which their minds are adverting.

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Faculty Working Papers

No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. Many judges may feel that their own standing in the community could be undermined by disclosures that other judges invent or misstate facts. The issue here is not which judges have integrity, …

Aspects Of Deconstruction: Thought Control In Xanadu, Anthony D'Amato

Faculty Working Papers

Nearly every case in nearly every legal system is a case where the factfinder—that is, the judge or jury—must decide what was going on in the minds of the litigants. For example, every criminal case turns on mens rea—a guess that the defendant harbored thoughts amounting to criminal intent. Tort cases involve the intention of the defendant, or at least his reckless indifference to risk. Estate cases require the probate court to assess the intent of the testator. Antitrust cases involve the question whether there was an intent to form a combination in restraint of trade. I can't think of …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …

Methodological Advances And Empirical Legal Scholarship: A Note On The Cox And Miles' Voting Rights Act Study, Nancy Staudt, Tyler Vanderweele

Faculty Working Papers

In this Response, we use Professors Cox and Miles' recent study of judicial decision-making to explore what is at stake when legal scholars present empirical findings without fully investigating the structural relationships of their data or without explicitly stating the assumptions being made to draw causal inferences. We then introduce a new methodology that is intuitive, easy to use, and, most importantly, allows scholars systematically to assess problems of bias and confounding. This methodology—known as causal directed acyclic graphs—will help empirical researchers to identify true cause and effect relationships when they exist and, at the same time, posit statistical models …

Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt

Faculty Working Papers

In this symposium essay, we investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider long-term and extreme economic contractions—depressions—as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous …

The Ultimate Injustice: When A Court Misstates The Facts, Anthony D'Amato

Faculty Working Papers

This essay deals with what "the law" did to Dr. Branion, an American citizen, after the jury convicted him of murder in 1968. Under the American legal system, a defendant is entitled to have his case reviewed by a higher court, and, under certain circumstances, if the appellate review is unsuccessful, to present a petition for habeas corpus to a state or federal court. I will focus primarily on the stage of his litigation with which I am most familiar: his pursuit of a habeas remedy in federal court between 1986 and 1989. I will try to explain how one …

Aspects Of Deconstruction: The "Easy Case" Of The Under-Aged President, Anthony D'Amato

Faculty Working Papers

When the deconstructionist says that all cases are to some degree problematic, the mainstream legal scholar gleefully pulls out a favorite crystal-clear case and asserts "not this one!" Judging from the law review commentary, the most popular of these "easy cases" concerns the constitutional mandate that the President shall be at least thirty-five years of age. Deconstructionists say that all interpretation depends on context. Radical deconstructionists add that, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time.

easy case, deconstruction in law, US Constitution …

Aspects Of Deconstruction: Refuting Indeterminacy With One Bold Thought, Anthony D'Amato

Faculty Working Papers

Deconstruction has already happened on the Supreme Court. Not only can no member of the Court really believe that "the law" (self-invented by the very Court it is supposed to govern!) can constrain the result in any individual case, but its members have also convinced themselves that they have no time to be concerned with dispensing justice to the parties. The justificatory legal language used in judicial opinions is not what our law teachers told us it was. The justificatory legal language is not provided to explain—much less constrain—the result in the case. Rather, it is a mode of couching …

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.

Can Any Legal Theory Constrain Any Judicial Decision?, Anthony D'Amato

Faculty Working Papers

A growing number of legal scholars have recently revived the American legal realist thesis that legal theory does not dictate the result in any particular case because legal theory itself is indeterminate. A more radical group has added that theory can never constrain judicial practice. I will present a spectrum of types of legal theories to demonstrate that the position of the more radical group of writers is correct—that legal theory is inherently incapable of identifying which party should win any given case.

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

Legal And Moral Dimensions Of Churchill's Failure To Warn, Anthony D'Amato

Faculty Working Papers

Churchill had been given at least forty-eight hours' warning that Coventry would be hit. He could have warned the people of Coventry of the impending attack. Yet Churchill determined that any advance warning to the people of Coventry would have enabled the Germans to deduce that their top secret code had been broken. The coded intercepts provided evidence of the Holocaust in progress. Other ways to reveal information that could have by-passed the code system existed, thus providing warning to the public while maintaining a strategic advantage. The international law of genocide would have to develop to go beyond intentional …

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.