Law Commons^™

Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman

Boston College Law School Faculty Papers

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …

Autonomy, Self-Governance, And The Margin Of Appreciation: Developing A Jurisprudence Of Diversity Within Universal Human Rights, Douglas Lee Donoho

Faculty Scholarship

No abstract provided.

Business Lawyer, Woman Warrior: An Allegory Of Feminine And Masculine Theories, Barbara Ann White

All Faculty Scholarship

The first part of this essay is a discourse on how two of the last half century’s most influential contributions to legal thinking: Law and Economics Jurisprudence and Feminist Legal Theory, whose adherents are normally adversaries, can function synergistically to create a greater analytic power. Using business law issues as an example - historically law and economics’ terrain but recently explored by feminism - I comment on how each can unravel different knots but each standing alone leave other conundrums unresolved.

Expanding on the feminist concept of “masculine thinking,” I discuss how, just as law and economics’ analytic style (i.e., …

Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington

Duke Law Journal

No abstract provided.

The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins

Dalhousie Law Journal

This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court …

Normativity And Objectivity In Law, Dennis Patterson

William & Mary Law Review

No abstract provided.

A Calvinist Perspective On The Place Of Faith In Legal Scholarship, David Caudill

David S Caudill

No abstract provided.

The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder

Journal Articles

The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically rather …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

The Unclear "Clear And Unmistakable" Standard: Why Arbitrators, Not Courts, Should Determine Whether A Securities Investor's Claim Is Arbitrable, Guy Nelson

Vanderbilt Law Review

When an individual investor opens an account with a securities broker, the customer often must sign a standard-form contract as a precondition of conducting business with the broker. This non- negotiable contract, referred to as a Customer Agreement, generally contains an arbitration clause under which the parties agree to submit any future disputes to arbitration conducted by one of the securities industry's self-regulatory organizations ("SROs"). Proceedings initiated under the broad and inclusive arbitration clause are subject to the arbitration guidelines established by the SROs, a group which includes all the major stock exchanges. Virtually all brokers are members of an …

Super-Statutes, William N. Eskridge Jr., John A. Ferejohn

Duke Law Journal

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional …

China's Post-Modern Legal Research And Its Prospects（中国的后现代法学研究及其前景）, Meng Hou

Hou Meng

No abstract provided.

Evidentiary Relevance, Morally Reasonable Verdicts, And Jury Nullification, Todd E. Pettys

Todd E. Pettys

In Old Chief v. United States, the Supreme Court stated that evidence offered by the Government in a criminal case has “fair and legitimate weight” if it tends to show that a guilty verdict would be morally reasonable. This Article focuses on that proposition. First, it discusses the ways in which Old Chief’s analysis rests upon a broadened understanding of evidentiary relevance. Second, it argues that significant theoretical difficulties impede any effort to determine whether evidence tends to show that a guilty verdict would be morally reasonable. Third, it argues that adopting Old Chief’s conception of relevance would necessitate significant …

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Nude Entertainment Zoning, Stephen Durden

Stephen Durden

Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …

La Libertad Como La Propiedad Personal De Hacer Lo Que Uno Quiere, Jorge Carlos Adame

Jorge Adame Goddard

No abstract provided.

The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader

Marquette Intellectual Property Law Review

Honorable Randall Rader, of the United States Court of Appeals for the Federal Circuit discusses current criticisms of the Federal Circuit and the speed of which the Circuit sets precedent. Before addressing these issues, Judge Rader posits a belief that the standard by which the Circuit is being judged is incorrect. Judge Rader's speech gives a foundation by which a correct standard should be exacted, examples of the current atmosphere leading to the precedents being set, and generally addresses why the Federal Circuit is fundamentally unique from other jurisdictions.

Reciprocity, Utility, And The Law Of Aggression, Anita Bernstein

Vanderbilt Law Review

The themes of incursion and boundary-crossing unite disparate legal domains. Wherever human beings cross paths and share space, law or law-like traditions develop to regulate this terrain by distinguishing permitted from proscribed intrusion.' Crimes and torts, regulation and liability, claims and defenses to claims, private law and public law all use a variety of measures--punishments, administrative rules, equitable remedies, professional discipline, and informal or extralegal sanctions-to condemn undue aggression. Concern about aggression may be found in the law of every jurisdiction in the United States.

Within American law, an extra increment of aggression can amount to the only difference between …

The Principles Of Justice, Richard W. Wright

All Faculty Scholarship

No abstract provided.

The Impossibility Of Lujan's Project, Gene R. Nichol

Faculty Publications

No abstract provided.

Jurisprudence Noire, Pierre Schlag

Publications

No abstract provided.

The Lawyerland Essays: Introduction, Pierre Schlag

Publications

No abstract provided.

Politics And Denial, Pierre Schlag

Publications

No abstract provided.

Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective, Ahmed A. White

Publications

No abstract provided.

Technologies Of Protest: Insurgent Social Movements And The First Amendment In The Era Of The Internet, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Mary Joe Frug's Postmodern Feminist Legal Manifesto Ten Years Later: Reflections On The State Of Feminism Today·, Regina Austin, Elizabeth M. Schneider

Faculty Scholarship at Penn Carey Law

No abstract provided.

Further Thoughts, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Constitutional Convention Of 1937: The Original Meaning Of The New Jurisprudential Deal, Kurt T. Lash

Fordham Law Review

No abstract provided.

Taking Globalization Seriously: Towards General Jurisprudence (Book Review Of Globalization And Legal Theory By William Twining), Doron M. Kalir

Law Faculty Articles and Essays

Part II provides an account of the jurisprudence of Globalization and Legal Theory. Due to the novelty of many of the issues discussed in the book, as well as their importance to the understanding of Twining's recommendations, I have provided a longer than usual account of several chapters. Part II touches upon one of the central jurisprudential dichotomies introduced by Twining—the distinction between general and particular jurisprudence. Twining compares different accounts of the distinction using pairs of canonical jurists. In particular, he compares H.L.A Hart's Postscript with Dworkin's Law's Empire. In this part, I juxtapose Twining's record of this …