Law Commons^™

Testamentary Formalism In Louisiana: Curing Notarial Will Defects Through A Likelihood-Of-Fraud Analysis, George Holmes

Louisiana Law Review

The article focuses on remedial doctrines applied by the U.S. courts in resolving issues of testamentary formalism. Topics discussed include analysis of the substantial compliance doctrine in Louisiana jurisprudence, laws signifying the importance of attestation and presence of witness, and the law for limiting validation of testator's intent through minimis errors.

Therapeutic Jurisprudence, David Wexler

Touro Law Review

No abstract provided.

A Year To Remember: The Supreme Court's Fourth, Fifth, And Sixth Amendment Jurisprudence For The 2003 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Is The Law Hopeful?, Annelise Riles

Annelise Riles

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Misunderstanding Ability, Misallocating Responsibility, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

In the Anglo-American legal tradition, people are responsible for damage caused by their failure to conform their conduct with that of the "reasonable person." With few exceptions, so long as one's conduct conforms to that of the reasonable person, then even if the conduct harms others, it does not create liability. Courts understand that the "reasonable person" is an idealized legal fiction but believe the construct to be a useful way to identify culpable conduct. For the reasonable-person test to be useful, courts must identify the characteristics of this reasonable person. As to cognitive and perceptual abilities, courts endow this …

Justice In Time, Robert C. Hockett

Robert C. Hockett

Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future. This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …

Noncomparabilities & Non Standard Logics, Robert C. Hockett

Robert C. Hockett

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just society. …

The Impossibility Of A Prescriptive Paretian, Robert C. Hockett

Robert C. Hockett

Most normatively oriented economists appear to be “welfarist” and Paretian to one degree or another: They deem responsiveness to individual preferences, and satisfaction of one or more of the Pareto criteria, to be a desirable attribute of any social welfare function. I show that no strictly “welfarist” or Paretian social welfare function can be normatively prescriptive. Economists who prescribe must embrace at least one value apart from or additional to “welfarism” and Paretianism, and in fact will do best to dispense with Pareto entirely.

A Summary Reflection On Legal Education, Robert Pascal, Olivier Moreteau

Olivier Moréteau

No abstract provided.

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Kevin M. Clermont

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …

Much Ado About Nothing? A Critical Examination Of Therapeutic Jurisprudence, Dennis Roderick, Susan T. Krumholz

University of Massachusetts Law Review

In the decades since the 1970s there have been several movements designed to impact or alter the workings of the legal system. The most lasting and widespread of these movements has been the development and systemic incorporation of mediation or Alternative Dispute Resolution, especially in the arena of family law but also impacting community disagreements, a variety of commercial disputes, and civil cases in general. However mediation did not significantly impact the practice of criminal law. Rapid growth in the number of individuals being processed through the criminal courts during the 1980s and 1990s shifted the focus to the criminal …

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

Construction Vs. Development: Polarizing Models Of Human Gestation, Richard Stith

Richard Stith

No abstract provided.

One Stick In The Bundle: Characterizing Nonparticipating Royalty Interests Under West Virginia Law, Andrew S. Graham, Allison J. Farrell, Lauren A. Williams, Amber M. Moore

West Virginia Law Review

No abstract provided.

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

Anti-Constitutional Moments, F.E. Guerra-Pujol

F.E. Guerra-Pujol

My previous paper “Gödel’s Loophole,” 41 Cap. U. L. Rev. 637 (2013) -- which has been downloaded over 3000 times on SSRN and has been featured on such websites as io9 and Hacker News -- has generated extensive commentary from academics and laypersons alike. Because of the interest in the subject matter of my previous paper on “Gödel’s Loophole,” I have written a new paper titled “Anti-Constitutional Moments” in which I combine legal history and constitutional theory in order to explore in detail an intriguing idea I first put forth in my previous work. In summary, previously I retold the …

Delaware’S Familiarity, Brian J. Broughman, Darian M. Ibrahim

Popular Media

No abstract provided.

Paradoxes Of Court Centered-Legal History: Some Values Of Historical Understanding For A Practical Legal Education, Edward A. Purcell Jr.

Journal of Legal Education

No abstract provided.

Book Review Of Leadership On The Federal Bench: The Craft And Activism Of Jack Weinstein, By Jeffrey B. Morris, Elizabeth A. Schneider

Journal of Legal Education

No abstract provided.

Book Review Of Representing Justice: Invention, Controversy, And Rights In The City-States, And Democratic Courtrooms, By Judith Resnik And Dennis Curtis, Amy Widman

Journal of Legal Education

No abstract provided.

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley

Catholic University Law Review

Informal regulations defining nature, natural, and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of …

Up Close And Personal With Delaware, Darian M. Ibrahim, Brian J. Broughman

Popular Media

No abstract provided.

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Chunlin Leonhard

Illegal agreement disputes force U.S. courts to wrestle with multiple competing interests. The courts’ approach has been generally explained and understood in terms of the general rule of non-enforcement of illegal agreements with numerous exceptions. The case law on this topic has been described as “a vast, confusing and rather mysterious area of the law.” This article offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. A review of randomly selected cases shows that the courts have by and large consistently (albeit implicitly) applied the lesser evil principle in resolving the disputes. …

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

Akron Law Faculty Publications

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 …