Law Commons^™

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

Pragmatic Patent Adjudication, Anna B. Laakmann

Anna B Laakmann

The Federal Circuit was created in large part to introduce stability and predictability into the patent law. By many accounts, it is failing to do so. Moreover, current patent doctrine does not adequately incorporate the patent system’s broader utilitarian purpose. Recent decisions on the patentability of diagnostic and therapeutic methods illustrate the fundamental flaws in the Federal Circuit’s jurisprudence. Doctrinal incoherence over medical methods is not simply an isolated glitch in the patent law. Rather, it serves as a case study of a larger problem with the court’s approach to questions of patent scope. By maintaining a façade of adjudicative …

“You’Re Creating New Categories:” Anglo-American Radical Feminism’S Constitutionalism In The Streets, Yxta M. Murray

Yxta M. Murray

In "You’re Creating New Categories:" Anglo-American Radical Feminism’s Constitutionalism in the Streets, I examine the constitutional meaning of two political protests: The 1968 Miss America protest by New York Radical Women and the 1970 British radical feminist protest of the Miss World competition in London. Using the work of Reva Siegel, Jack Balkin, and Lynda G. Dodd as a foundation for my inquiry into how these social movement protests influenced constitutional culture concerning women's rights, I first engage in historical and social analyses of the protests themselves. In particular, I study the different approaches the U.S. and British feminists had …

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

The Costs Of Legal Change, Michael P. Van Alstine

Michael P. Van Alstine

No abstract provided.

The Death Of Good Faith In Treaty Jurisprudence And A Call For Resurrection, Michael P. Van Alstine

Michael P. Van Alstine

This article addresses the absence of the venerable doctrine of good faith interpretation, as well as its companion “liberal interpretation canon,” from modern Supreme Court treaty jurisprudence. Although scholarly accounts suggest that the spirit is still alive, the article demonstrates that the doctrine was silently interred by the Supreme Court early in the last century. From all appearances, the disappearance of good faith from treaty jurisprudence was not by design. Nonetheless, the article demonstrates that even such an unintended drift can have serious negative consequences. In the context of treaty jurisprudence, the consequence of the departure of good faith interpretation …

One Hundred Years Of Harmful Error: The Historical Jurisprudence Of Medical Malpractice, Theodore Silver

Theodore Silver

In this Article, Professor Silver examines the origins of present-day malpractice law. He begins by noting that negligence and medical malpractice as the common law now knows them made their debut in the nineteenth century although their roots lie deep in the turf of trespass and assumpsit. He argues, however, that toward the turn of the century several episodes of linguistic laziness purported to produce a separation between negligence and medical malpractice so that the two fields are conventionally thought to rest on separate doctrinal foundations. According to Professor Silver, historically based scrutiny of medical malpractice and its ties to …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Towards A Synthesis Between Islamic And Western Jus In Bello, Jacob Turner

Jacob Turner

In the body of international humanitarian law (‘IHL’), there is a lacuna regarding the status of combatants engaged in asymmetric warfare. This has arisen, at least in part, out of a failure to establish a satisfactory distinction between civilians and combatants reflecting the nature of such conflicts and commanding the respect of parties to them. The recent killing of Osama Bin Laden by US Special Forces Operatives has provided publicity to the debates regarding the legal status of irregular combatants. Some have claimed that Bin Laden ought to have been captured alive and tried in a court. The US administration …

Original Acquisition Of Property: From Conquest & Possession To Democracy & Equal Opportunity, Joseph William Singer

Indiana Law Journal

2010 Harris Lecture, delivered April 5, 2010, Indiana University, Maurer School of Law, Bloomington, Indiana

Justice Holmes At The Intersection Of Philosophical And Legal Pragmatism, Seth C. Vannatta

Seth C Vannatta

Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial …

Demystifying The Determination Of Foreign Law In U.S. Courts: Opening The Door To A Greater Global Understanding, Matthew J. Wilson

Matthew J. Wilson

With globalization and the proliferation of international commercial interaction, U.S. courts commonly encounter issues governed by the laws of other sovereigns. These encounters arise by virtue of private agreements or choice-of-law rules covering contractual relationships, cross-border conduct, tortuous acts, employment matters, intellectual property rights, and various other legal foundations. Because the substantive law applied in an international lawsuit can be outcome-determinative, it is important to accurately ascertain and determine the relevant law. In fact, the proper functioning of private international law in a domestic system is based on the appropriate application of law.

U.S. federal and state courts are presumed …

Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch

Missouri Law Review

As I discuss below, conditions on the ground have changed in the few short months following the Symposium. Congress has now acted, and the Patent Office will soon have additional authority. These changes play directly into the arguments of our Symposium authors and make their results even more important.

Remedial Secession: What The Law Should Have Done, From Katanga To Kosovo, Thomas W. Simon

Thomas W Simon

In considering Kosovo’s secessionist claims, the International Court of Justice missed a rare opportunity to make a difference. It should have set forth the grounds for granting secession within international law. This Article does not provide yet another doctrinal analysis. Instead, it takes a normative, exploratory route, laying out what the grounds for secession should be and how they should be adjudicated. It defends a refurbished Remedial Model, which provides a morally and legally justification for secession as a last resort remedy for injustices.

The Remedial Model requires a three step inquiry, one relational and two status determinations. First, does …

Review Essay: The Challenges Of Religous Neutrality, Samuel J. Levine

Samuel J. Levine

Levine begins this review essay by noting that at the outset of his discussion, Gedicks notes the difficulty one faces in critically engaging Supreme Court decisions in the area of church and state law. Gedicks goes on to premise his analysis on the identification of “competing rhetorical discourses of church-state relations,” through which he attempts to “organize virtually all of religion clause doctrine.” Gedicks applies this phenomenon, which he terms “discourse,” to church and state law. Thus, in The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence, Professor Gedicks succeeds in his goal of providing a …

Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine

Samuel J. Levine

In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Individual Liberty And Self-Determination, Fabio Macioce

Fabio Macioce

In this essay I will try to demonstrate that the principle of self-determination is based on a formal and individualistic view of liberty rights. I also propose a different perspective that takes into account the relationships rather than the individual. I will show how this result can only be achieved through a different ascription of rights to individuals: in particular, I will try to demonstrate 1) that any social practices express specific values​​, 2) that these values ​​are the result of historical and cultural circumstances, 3) that they are subject to an ongoing public debate, and finally 4) that only …

Face-Recognition Surveillance: A Moment Of Truth For Fourth Amendment Rights In Public Places, Douglas Fretty

Douglas A Fretty

Americans are increasingly monitored with face-recognition technology (FRT), a surveillance tool that allows the state to identify a pedestrian based on a pre-existing database of facial photographs. This Article argues that FRT embodies the fundamental Fourth Amendment dilemmas raised by contemporary digital surveillance and will serve as harbinger for the Amendment’s future. FRT cases will test whether people retain a reasonable expectation of privacy in their identities when they move in public, and whether the aggregation of information about a person’s movements amounts to an unreasonable search. Further, the suspicionless identification of pedestrians will test whether a seizure can occur …

Law And Economics As A Rhetorical Perspective In Law, Michael D. Murray

Law Faculty Publications

Law and Economics as a Rhetorical Perspective in Law

Michael D. Murray

Abstract

This article introduces twenty-first century law and economics as a school of contemporary legal rhetoric to test and improve general legal discourse in areas beyond the economic analysis of law. My article is the first to examine the prescriptive implications of the rhetoric of law and economics for general legal discourse as opposed to examining the benefits and limitations of the economic analysis of law itself. This article advances the conversation in two areas: the study and understanding of the persuasiveness of law and economics and the …

Introducing Civil Law Students To Common Law Legal Method Through Contract Law, Charles R. Calleros

Journal of Legal Education

No abstract provided.

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

Dr. King’S Speech: Surveying The Landscape Of Law And Justice In The Speeches, Sermons, And Writings Of Dr. Martin Luther King Junior, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The belief that an essential relationship exists between law and justice has been recognized since the time of the ancient Greeks. In fact, the concept extends well beyond Western philosophy and jurisprudence. Distinct from other aspects of justice, the relationship between law and justice considers the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, he made a meaningful contribution to the intellectual discourse of his time by forcing the discussion on the broader society and centering it …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …

Bad Science Makes Bad Law: How The Deference Afforded To Psychiatry Undermines Civil Liberties, Samantha Godwin

Samantha Godwin

Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.