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Full-Text Articles in Law

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson Jan 2020

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Articles

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns ...


Doctrinal Reasoning As A Disruptive Practice, Jessie Allen Jan 2018

Doctrinal Reasoning As A Disruptive Practice, Jessie Allen

Articles

Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.


Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless Jan 2017

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

Articles

No abstract provided.


Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless Jan 2017

Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless

Articles

No abstract provided.


Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin Jan 2017

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Galperin

Articles

It is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to ...


Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton Jan 2016

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

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No abstract provided.


A Theory Of Copyright Authorship, Christopher Buccafusco Jan 2016

A Theory Of Copyright Authorship, Christopher Buccafusco

Articles

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or ...


Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy Jan 2015

Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy

Articles

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.


Structuralist Legal Histories, Justin Desautels-Stein Jan 2015

Structuralist Legal Histories, Justin Desautels-Stein

Articles

This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.


A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux Jan 2015

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Articles

No abstract provided.


Empirical Doctrine, Jessie Allen Jan 2015

Empirical Doctrine, Jessie Allen

Articles

We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal ...


Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley Jan 2014

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Articles

No abstract provided.


Abortion Distortions, Caroline Mala Corbin Jan 2014

Abortion Distortions, Caroline Mala Corbin

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No abstract provided.


The Judge And The Drone, Justin Desautels-Stein Jan 2014

The Judge And The Drone, Justin Desautels-Stein

Articles

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the ...


Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash Jan 2014

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

No abstract provided.


Law And Artifice In Blackstone's Commentaries, Jessie Allen Jan 2014

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there ...


A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein Jan 2013

A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein

Articles

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not ...


The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr. Jan 2013

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

Articles

This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.


Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber Jan 2012

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Articles

No abstract provided.


Experimental Pragmatism In The Third Globalization, Justin Desautels-Stein Jan 2012

Experimental Pragmatism In The Third Globalization, Justin Desautels-Stein

Articles

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the ...


The Market As A Legal Concept, Justin Desautels-Stein Jan 2012

The Market As A Legal Concept, Justin Desautels-Stein

Articles

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images ...


Race As A Legal Concept, Justin Desautels-Stein Jan 2012

Race As A Legal Concept, Justin Desautels-Stein

Articles

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little ...


The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen Jan 2012

The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen

Articles

This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely ...


Theater Of International Justice, Jessie Allen Jan 2012

Theater Of International Justice, Jessie Allen

Articles

In this essay I defend international human rights tribunals against the charge that they are not “real” courts (with sovereign force behind them) by considering the proceedings in these courts as a kind of theatrical performance. Looking at human rights courts as theater might at first seem to validate the view that they produce only an illusory “show” of justice. To the contrary, I argue that self-consciously theatrical performances are what give these courts the potential to enact real justice. I do not mean only that human rights tribunals’ dramatic public hearings make injustice visible and bring together a community ...


Efficient Uncertainty In Patent Interpretation, Harry Surden Jan 2011

Efficient Uncertainty In Patent Interpretation, Harry Surden

Articles

Research suggests that widespread uncertainty over the scopes of issued patents creates significant costs for third-party firms and may decrease innovation. This Article addresses the scope uncertainty issue from a theoretical perspective by creating a model of patent claim scope uncertainty.

It is often difficult for third parties to determine the legal coverage of issued patents. Scope underdetermination exists when the words of a patent claim are capable of a broad range of plausible scopes ex ante in light of the procedures for interpreting patents. Underdetermination creates uncertainty about claim coverage because a lay interpreter cannot know which interpretation will ...


Affirmative Action As Government Speech, William M. Carter Jr. Jan 2011

Affirmative Action As Government Speech, William M. Carter Jr.

Articles

This article seeks to transform how we think about “affirmative action.” The Supreme Court’s affirmative action jurisprudence appears to be a seamless whole, but closer examination reveals important differences. Government race-consciousness sometimes grants a benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to non-minorities. Under the Court’s current equal protection doctrine, both categories of cases are treated as presumptively unconstitutional. Race-consciousness itself has become a constitutional harm, regardless of tangible effects.

Prior scholarship has suggested ...


Documentary Disenfranchisement, Jessie Allen Jan 2011

Documentary Disenfranchisement, Jessie Allen

Articles

In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of ...


Seeing Subtle Racism, Pat K. Chew Jan 2010

Seeing Subtle Racism, Pat K. Chew

Articles

Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination jurisprudence ...


Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag Jan 2009

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

Articles

In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every ...


Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag Jan 2009

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

Articles

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We ...