Law Commons^™

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose and …

Of Gangs And Gaggles: Can A Corporation Be Part Of An Association-In-Fact Rico Enterprise? Linguistic, Historical, And Rhetorical Perspectives, Randy D. Gordon

Randy D. Gordon

Over 30 years ago, courts of appeals began to hold that the RICO statute’s definition of association-in-fact enterprise is broad enough to include corporations as constituent members, even though that definition states that such an association is limited to a “group of individuals.” This Article demonstrates why these cases were wrongly decided from a variety of perspectives: linguistic, systemic and consequentialist. It also suggests a strategy for correcting this widespread interpretive error and provides evidence that the Supreme Court may be disposed to agree that the lower courts have uniformly erred.

How Lawyers (Come To) See The World: A Narrative Theory Of Legal Pedagogy, Randy D. Gordon

Randy D. Gordon

Even if one believes that law is not an autonomous discipline, few would dispute that it is a conservative institution and that its members are trained via a pedagogical method quite different from that of other professions. A central aspect of this training is the case method and — thus — the specialized narrative form that appellate opinions take. This essay examines the case method and suggests ways to crack it open — without discarding it — and thereby achieve one of the goals set forth in the Carnegie Report: namely, to supplement the analytical, rule-based mode of reasoning inherent …

Judicial Engagement, New Originalism, And The Fortieth Anniversary Of Government By Judiciary, Eric J. Segall

Fordham Law Review Online

Part I briefly summarizes Berger’s originalist approach. Part II describes how the new Judicial Engagement originalists suggest judges should resolve constitutional cases. Part III explains why text and history do not support their judicially enforceable, libertarian political agendas. Part III does not suggest that this agenda leads to bad results, is harmful, or should not be adopted by today’s judges. But for the sake of governmental and academic transparency, judges, legal scholars, and politicians who embrace Judicial Engagement, should also accept that their theory of judicial review is not supported by either the Constitution’s text or history. Judicial Engagement can …

A Theoretical Perspective Of The Public Policy Doctrine In The Conflict Of Laws, Kenny Chng

Research Collection Yong Pung How School Of Law

The public policy doctrine in the conflict of laws hasbeen often characterised as uncertain and ambiguous. This article aims toexamine the doctrine at common law from a theoretical perspective in order to:first, determine whether the substantive considerations which courts haveinvoked under the public policy doctrine are theoretically justifiable; second,discern principled boundaries around the courts’ exercise of the defence. Througha study of case law and an examination from first principles of the normativebasis for the recognition of foreign laws and judgments, this article proposesa set of principles that can form the theoretical underpinning of the publicpolicy doctrine, and will examine how …

The Pragmatist Tradition: Lessons For Legal Theorists, Susan Haack

Articles

No abstract provided.

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Publications

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

Models Of Law, Christian Turner

Scholarly Works

The more we examine what is behind our most difficult legal questions, the more puzzling it can seem that we continue both to disagree strongly and, yet, to cooperate. If law is a reasoned enterprise, how is it that we are neither torn apart nor homogenized by our long social practice of it? I resolve this puzzle, and arrive at a richer understanding of law, using the idea of modeling familiar from the natural sciences and mathematics. I show (a) that theorists can model legal systems as abstract systems of institutions, information flows, and institutional processing or reasoning and (b) …

Fearless Speech, Mary Anne Franks

Articles

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.

From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private …

Interpretation And Construction In Contract Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Interpretation determines the meaning of a legal actor’s words and actions, construction their legal effect. Although the interpretation-construction distinction has a long pedigree, contract scholars today rarely attend to it, and the relationship between the two activities remains understudied. This Article provides an account of the interplay between interpretation and construction in contract law.

It begins with the history of the concepts, focusing on the works of Lieber, Williston and Corbin. It adopts Corbin’s complimentary conception, according to which interpretation alone never suffices to determine speech act’s legal effects; a rule of construction is always required. The Article departs from …

R2h And The Prospects For Peace: An Essay On Sovereign Responsibilities, David Luban

Georgetown Law Faculty Publications and Other Works

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in …

When Impunity And Corruption Embrace: How The Past Becomes The Future In The Struggle Against Torture And Genocide, Elizabeth M. Iglesias

Articles

In this article, Professor Elizabeth Iglesias takes up the challenge of overcoming impunity for atrocity crimes as a problem of structural corruption. Beginning with the 2013 trial and conviction of Guatemalan leader Efrain Rios Montt for crimes against humanity and genocide in the courts of his own country, the article turns to the scandal surrounding United States' President Donald Trump's repeated threats to fire the special counsel investigating allegations that he and his campaign colluded with foreign nationals to steal the 2016 presidential election and the scandal surrounding the nomination and confirmation of Gina Haspel as the first woman to …

The Law Of Deception: A Research Agenda, Gregory Klass

University of Colorado Law Review

No abstract provided.