Law Commons^™

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Reading The Product: Warnings, Disclaimers, And Literary Theory, Laura A. Heymann

Faculty Publications

No abstract provided.

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Scholarly Articles

Not available.

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

Revitalizing The Adversary System In Family Law, Jane C. Murphy

All Faculty Scholarship

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, …

Scorn Not The Sonnet: In Search Of Shakespeare's Law, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation, Anthony D'Amato

Faculty Working Papers

No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. Many judges may feel that their own standing in the community could be undermined by disclosures that other judges invent or misstate facts. The issue here is not which judges have integrity, …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato

Faculty Working Papers

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …

The End Of Originalism, Jeffrey Shaman

College of Law Faculty

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline.

Originalism is a radical departure from the Supreme Court’s well-established jurisprudence of a living …

A Path Not Taken: Hans Kelsen's Pure Theory Of Law In The Land Of Legal Realists, D. A. Jeremy Telman

Law Faculty Publications

This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected …

Impartiality: Balancing Personal And Professional Integrity In Judicial Decisionmaking, Sarah M. R. Cravens

Akron Law Faculty Publications

No abstract provided.

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Extraordinary Justice, David C. Gray

Faculty Scholarship

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

Faculty Scholarship

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace

Student Articles and Papers

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms.

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Scholarly Articles

Politics' and pathology have converged to heighten speculation that Justice Ruth Bader Ginsburg's tenure on the Supreme Court is nearing its end. Even if the imminence of her retirement is greatly exaggerated, the time to reflect on Justice Ginsburg's lasting contribution to American constitutional law has arrived. Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White's vacated seat on the high court, that she is to the women's movement …

Balancing Security And Liberty In Germany, Russell A. Miller

Scholarly Articles

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman

Law Faculty Scholarship

The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state …

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Non-Fatal Collision: Interpreting Rluipa Where Religious Land Uses And Community Interests Meet, Adam J. Macleod

Faculty Articles

Imagine a large church located in a multi-family residential zoning district, where commercial uses are not permitted and religious uses are permitted by special use permit. The church applies for a special use permit to open a coffee shop, which would operate throughout the week during normal business hours and would supplement and support the church's other ministries. At the hearing on the permit application, many neighbors object. They fear increased traffic, visual blight, and safety hazards for their children. The city denies the permit. The church files an action against the city, alleging that the city has substantially burdened …

Can Legislatures Constrain Judicial Interpretation Of Statutes?, Anthony D'Amato

Faculty Working Papers

An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this …

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

Legal Realism Explains Nothing, Anthony D'Amato

Faculty Working Papers

I argue that American legal realism as derived from Oliver Wendell Holmes's prediction theory of law was misinterpreted, and that a deeper examination of law-as-prediction might help to reduce the pathology of judicial lawmaking that has been the unfortunate consequence of legal realism.

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".

Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato

Faculty Working Papers

Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."

The "Bad Samaritan" Paradigm, Anthony D'Amato

Faculty Working Papers

This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …

Elmer's Rule: A Jurisprudential Dialogue, Anthony D'Amato

Faculty Working Papers

Cardozo wrote of Riggs v. Palmer that this case that two analytical paths pointed in different directions and the judges selected the path that seemed better to lead to "justice". Dworkin has claimed that the case demonstrates the triumph of certain "principles" over what are called "rules of law". Taylor has argued that there was no "law" at all about murderers inheriting from testators before the actual decision in Riggs, and that consequently the decision itself was the only "law" that affected Elmer. All of these suggest that the decision in Riggs was largely unpredictable and therefore must have come …

Judicial Legislation, Anthony D'Amato

Faculty Working Papers

My argument will be that it is unjust in the broadest view of our legal system for judges to legislate, even if they confine their legislation to the narrowest limits in the closest of cases. To the extent that my argument is successful in diminishing the judicial legislation position, it would tend to serve to corroborate Dworkin's rights thesis.

Is Equality A Totally Empty Idea?, Anthony D'Amato

Faculty Working Papers

Comments on Westen article The Empty Idea of Equality. The only way we know what direction to move in making reductions and increases in burdens is to have a concept of equality in mind. The only way we can know that one burden is 'great' and another burden is 'considerably lesser,' to use the words in Westen's standard, is to compare the burdens. But comparison presupposes a measure of equality, for we cannot know that one burden is greater than another unless we first have a concept of when the two burdens are equal. Westen's standard, therefore, is logically posterior …