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Trumps, Inversions, Balancing, Presumptions, Institution Prompting, And Interpretive Canons: New Ways For Adjudicating Conflicts Between Legal Norms, Carlos E. Gonzalez
Trumps, Inversions, Balancing, Presumptions, Institution Prompting, And Interpretive Canons: New Ways For Adjudicating Conflicts Between Legal Norms, Carlos E. Gonzalez
Rutgers Law School (Newark) Faculty Papers
This article begins by reviewing the axiomatic principles that govern courts when dealing with cases in which two legal norms are interpreted as standing in conflict. The article then makes three distinct contributions.
First, the article explicates the central justification behind the use and perpetuation of the extant principles. In briefest terms, the extant principles are best justified as an attempt to resolve cases in which legal rules stand in conflict in a way that enhances or preserves the democratic legitimacy of law. They do this by favoring norms created by entities of relatively strong democratic legitimacy over norms created …
Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg
Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg
Rutgers Law School (Newark) Faculty Papers
Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.
The article develops several explanations for this avoidance of explicit morals …