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- University of San Diego Public Law and Legal Theory Research Paper Series (7)
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Articles 1 - 30 of 33
Full-Text Articles in Law
Symposium On Transformative Gender Law: A Roger Williams Law Review Event 11-3-2023, Roger Williams University School Of Law
Symposium On Transformative Gender Law: A Roger Williams Law Review Event 11-3-2023, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle
Articles in Law Reviews & Other Academic Journals
This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …
Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden
Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray
Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray
Faculty Scholarship
No abstract provided.
Second-Best Criminal Case, William Ortman
Second-Best Criminal Case, William Ortman
Law Faculty Research Publications
No abstract provided.
Women In The Legal Academy: A Brief History Of Feminist Legal Theory, Robin West
Women In The Legal Academy: A Brief History Of Feminist Legal Theory, Robin West
Georgetown Law Faculty Publications and Other Works
Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as in the quality of their experiences as students and faculty members and in the benefits to be reaped from …
Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale
A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale
Faculty Scholarship
No abstract provided.
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod
Faculty Articles
The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …
The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey
The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey
Faculty Scholarship
The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …
In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler
In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler
All Faculty Scholarship
This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may …
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Langdell Upside-Down: James Coolidge Carter And The Anticlassical Jurisprudence Of Anticodification, Lewis Grossman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
University of San Diego Public Law and Legal Theory Research Paper Series
This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The …
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
Understanding Recent Trends In Federal Regulation Of Lawyers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Federal lawmakers increasingly have taken actions that contradict, interfere with, or preempt state regulation of lawyers. Most of the commentary regarding the recent federal actions has focused on whether individual regulations are substantively justified. It is, however, worth considering more broadly whether and how the phenomenon of increasing federal regulation is symptomatic of changing views of appropriate professional regulation. This article considers a series of theoretical analyses of the increasing federal regulation -- themes and trends that the increasing regulation might represent or epitomize. Whenever the bar or other commentators criticize developments in professional regulation, it is important to place …
Lawyers As Gatekeepers, Fred C. Zacharias
Lawyers As Gatekeepers, Fred C. Zacharias
University of San Diego Public Law and Legal Theory Research Paper Series
Three recent legislative and regulatory initiatives -- the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative – all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers – which some of the opponents deem equivalent to operating like the “secret police in Eastern European countries.” This article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been. Whatever one’s position on the merits of the specific reforms currently being proposed, it …
Strategic Judicial Lawmaking: An Empirical Investigation Of Ideology And Publication On The U.S. Court Of Appeals For The Ninth Circuit, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all …
The Hollowness Of The Harm Principle, Steven D. Smith
The Hollowness Of The Harm Principle, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
Appointing Federal Judges: The President, The Senate, And The Prisoner's Dilemma, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates …
Between Law And Virtue, Joseph P. Tomain, Barbara Watts
Between Law And Virtue, Joseph P. Tomain, Barbara Watts
Faculty Articles and Other Publications
Legal ethics, professional responsibility, and professionalism are timely topics as lawyers continually reevaluate the standards of their profession, particularly in light of the challenges of multidisciplinary and multijurisdictional practice, as well as the embarrassment facing lawyers involved in and surrounding the Enron collapse. In this article, our goal is to discuss how to think and talk about ethics and professionalism. By way of preview, we need to understand that ethics and professionalism use different vocabularies and, consequently, talk past each other to some extent. Our hope is that understanding the existence of these two vocabularies helps reduce the misunderstanding. Both …
Extending The Revisionist Project, Lewis Grossman
Extending The Revisionist Project, Lewis Grossman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Jurisprudence Noire, Pierre Schlag
The Lawyerland Essays: Introduction, Pierre Schlag
The Architecture Of Judicial Independence, Stephen B. Burbank
The Architecture Of Judicial Independence, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Anti-Intellectualism, Pierre Schlag
Values, Pierre Schlag
Clerks In The Maze, Pierre Schlag
Normativity And The Politics Of Form, Pierre Schlag
Normativity And The Politics Of Form, Pierre Schlag
Publications
No abstract provided.
Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank
Interjurisdictional Preclusion, Full Faith And Credit And Federal Common Law: A General Approach, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Irvin C. Rutter, Gordon A. Christenson
Irvin C. Rutter, Gordon A. Christenson
Faculty Articles and Other Publications
Tribute to legal scholar, Irvin Rutter.