Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Jurisprudence (36)
- Constitutional Law (17)
- Public Law and Legal Theory (15)
- Courts (10)
- Judges (8)
-
- Legal Profession (7)
- Legal History (6)
- Legal Ethics and Professional Responsibility (5)
- Law and Philosophy (4)
- Civil Rights and Discrimination (3)
- Criminal Law (3)
- Jurisdiction (3)
- Law and Society (3)
- Administrative Law (2)
- Comparative and Foreign Law (2)
- Criminal Procedure (2)
- Health Law and Policy (2)
- Intellectual Property Law (2)
- Law and Psychology (2)
- Legal Education (2)
- Legislation (2)
- Medical Jurisprudence (2)
- Agency (1)
- Arts and Humanities (1)
- Business (1)
- Civil Law (1)
- Conflict of Laws (1)
- Human Rights Law (1)
- Insurance (1)
- Institution
-
- University of San Diego (16)
- Cornell University Law School (4)
- Columbia Law School (3)
- The University of Akron (3)
- BLR (2)
-
- University of Colorado Law School (2)
- Yeshiva University, Cardozo School of Law (2)
- American University Washington College of Law (1)
- Boston University School of Law (1)
- Case Western Reserve University School of Law (1)
- Chicago-Kent College of Law (1)
- Georgetown University Law Center (1)
- Notre Dame Law School (1)
- Osgoode Hall Law School of York University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Kentucky (1)
- University of New Hampshire (1)
- University of North Carolina School of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Washington School of Law (1)
- Villanova University Charles Widger School of Law (1)
- Publication
-
- University of San Diego Public Law and Legal Theory Research Paper Series (16)
- Faculty Scholarship (4)
- Akron Law Faculty Publications (3)
- Articles (3)
- All Faculty Scholarship (2)
-
- Cornell Law Faculty Publications (2)
- Faculty Publications (2)
- Publications (2)
- Rutgers Law School (Newark) Faculty Papers (2)
- Articles & Book Chapters (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Cornell Law Faculty Working Papers (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Journal Articles (1)
- Law Faculty Scholarly Articles (1)
- Law Faculty Scholarship (1)
- Overview of Legal Systems in the Asia-Pacific Region (2004) (1)
- Scholarly Works (1)
- Working Paper Series (1)
Articles 1 - 30 of 46
Full-Text Articles in Law
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
University of San Diego Public Law and Legal Theory Research Paper Series
This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …
Common-Law Compulsory Counterclaim Rule: Creating Effective And Elegant Res Judicata Doctrine, Kevin M. Clermont
Common-Law Compulsory Counterclaim Rule: Creating Effective And Elegant Res Judicata Doctrine, Kevin M. Clermont
Cornell Law Faculty Publications
Even in the absence of an applicable statute or court rule, failure to assert an available counterclaim precludes bringing a subsequent action thereon if granting relief would nullify the judgment in the initial action. This so-called common-law compulsory counterclaim rule emerges from the intuitive principle of claim preclusion that a valid and final judgment generally precludes the defendant from later asserting mere defenses to the claim. The implicit extension of this idea is that once a plaintiff obtains a judgment, the defendant generally cannot bring a new action to undo the judgment by reopening the plaintiff’s claim and pushing those …
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 …
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 …
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
University of San Diego Public Law and Legal Theory Research Paper Series
“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …
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 …
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
Judges As Rulemakers, Larry A. Alexander, Emily Sherwin
University of San Diego Public Law and Legal Theory Research Paper Series
This essay analyzes and compares different approaches to the problem of legal precedent. If judges reasoned flawlessly, the ideal approach to precedent would give prior judicial opinions only the weight they naturally carry in moral reasoning. Given that judges are not perfect reasoners, the best approach to precedent is one that treats rules established in prior decisions as authoritative for later judges. In comparison to the natural model of precedent, a rule-based model minimizes error. A rule-based model is also superior to several popular attempts at compromise, which call on judges to reason from the results of prior cases or …
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 …
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
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 …
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
Supermajority Rules And The Judicial Confirmation Process, Michael B. Rappaport, John O. Mcginnis
University of San Diego Public Law and Legal Theory Research Paper Series
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own …
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 …
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
University of San Diego Public Law and Legal Theory Research Paper Series
This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …
A Tournament Of Virtue, Lawrence B. Solum
A Tournament Of Virtue, Lawrence B. Solum
University of San Diego Public Law and Legal Theory Research Paper Series
How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …
Generic Constitutional Law, David S. Law
Generic Constitutional Law, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …
The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel
The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel
Cornell Law Faculty Publications
Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …
The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel
The Jurisprudence Of Enron: Professionalism As Interpretation, W. Bradley Wendel
Cornell Law Faculty Working Papers
Jurisprudence can seem like a formidably esoteric field, with conceptual arguments carried on at a high level of abstraction, seemingly remote from the concerns of practicing lawyers. In fact, it is impossible to ignore jurisprudence when thinking about the role of lawyers in the wave of financial accounting scandals exemplified by the collapse of Enron. The Enron case is not about ethics so much as it is about the interpretation and application of a complex scheme of legal norms to innovative business transactions. The lawyers believed they were taking a legitimate, albeit aggressive interpretive attitude toward the law, by structuring …
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez
University of San Diego Public Law and Legal Theory Research Paper Series
Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady
Working Paper Series
Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …
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 …
Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand
Overview Of Legal Systems In The Asia-Pacific Region: India, Navoneel Dayanand
Overview of Legal Systems in the Asia-Pacific Region (2004)
This article provides a general description of the legal system of India. It further discusses aspects of legal education and legal practice in that country.
Rights, Rationality, And The Preemption Of Reasons, Richard Warner
Rights, Rationality, And The Preemption Of Reasons, Richard Warner
All Faculty Scholarship
No abstract provided.
The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall
The Empty Promise Of Compassionate Conservatism: A Reply To Judge Wilkinson, William P. Marshall
Faculty Publications
No abstract provided.
Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn
Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn
Akron Law Faculty Publications
The decisions of the Supreme Court in Lawrence v. Texas and Grutter v. Bollinger, stripped to their bare holdings, have little immediate effect on existing law. After Grutter, colleges and graduate schools will continue to take race into account in admitting students to enroll a diverse student body, just as they have done for the past quarter century in conformity with Justice Lewis Powell's opinion in Regents of the University of California v. Bakke. After Lawrence, laws against gay sex may no longer be enforced, but only a handful of states still had these laws on the books at the …
Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn
Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn
Akron Law Faculty Publications
But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.
Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …
Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson
Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson
Akron Law Faculty Publications
Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.
‘Twas not always so. …
Speech And Strife, Robert L. Tsai
Speech And Strife, Robert L. Tsai
Articles in Law Reviews & Other Academic Journals
The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber
Publications
Modern criminal law is intensely one-sided in its treatment of victims and defendants. Crime victims and criminal defendants do not enter the trial process on an equal moral footing. Rather, from the beginning victims are assumed blameless, truthful, and even beyond doubt, while defendants are guilty, not worthy of credence, and immoral. This one-sided view of victims, however, is a fiction. As any other people, victims differ in their characterizations. Some are indeed trustworthy, truthful, blameless and ultimately innocent. Others, however, are bad actors themselves, have memory failures, falsely identify, provoke, and even lie. Some victims are in fact, and …