Law Commons^™

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

University of Colorado Law Review

No abstract provided.

Deep Cuts: Four Critiques Of Legal Ideology, Justin Deystone, Akbar Rasulov

Publications

This Article begins an effort to rekindle the intellectual tradition of critical legal theory. The context for the project is significant. On the one hand is the grip of a social crisis, the contours of which continue to confound the commentariat. Racism, xenophobia, gendered violence, migration and nation, climate change, health pandemics, political corruption. The parade is as intimidating as it is spectacular. On the other hand, the very tools of criticism we depend upon in identifying these characters in the parade, much less the spectacle of the parade itself, are themselves in crisis. There is, in a word, a …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

The Morality Of Fiduciary Law, Paul B. Miller

Journal Articles

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several …

Dissenting From The Bench, Christine M. Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

The False Dichotomy Of Corporate Governance Platitudes, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

In 2019, the Business Roundtable amended its principles of corporate governance, deleting references to the primary purpose of the corporation being to serve the shareholders. In doing so, it renewed the “shareholder vs. stakeholder” debate among academic theorists and politicians. The thesis here is that the zero-sum positions of the contending positions are a false dichotomy, failing to capture the complexity of the corporate management game as it is actually played. Sweeping and absolutist statements of the primary purpose of the corporation are based on arid thought experiments and idiosyncratic cases in which corporate leaders have managed to be either …

Introduction: History, Ideology, And The Crisis Of Legal Critique, Justin Deystone, Samuel Moyn

Publications

No abstract provided.

Reevaluating Legal Theory, Jeffrey A. Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

Functions Of The Rule Of Law, Brian Z. Tamanaha

Scholarship@WashULaw

This concise essay examines multiple manifest and latent functions of the rule of law. The rule of law is characterized as a society in which government officials and the populace are generally bound by and abide law. The functions covered include: personal and collective security and trust; integration of society; legal restrictions on officials; liberty and guiding conduct; economic development; a pivotal place for legal professionals; entrenching power structures; normative commitment and critical standard; and rhetoric. The discussion raises core issues about each function.

Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha

Scholarship@WashULaw

The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a …

A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha

Scholarship@WashULaw

This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with …

Submission To House Of Commons General Committee On Judicial Review And Courts Bill 152 2021-22 (Prospective Quashing Orders), Samuel Beswick

All Faculty Publications

I disagree with the proposal in the Judicial Review and Courts Bill, clause 1(1)(29A)(1)(b), to create prospective-only remedies in judicial review, because:

a. Prospective Quashing violates Professor A.V. Dicey’s canonical three meanings of the Rule of Law.

b. The premise of Subsection (1)(b), ‘that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating’ impugned acts, is contradicted by the leading mainstream theories of adjudication in the common law world.

c. Prospective Quashing draws judges into making policy and encourages judicial activism.

d. Prospective Quashing is inconsistent with the English common law judicial method …

Police Prosecutions And Punitive Instincts, Kate Levine

Articles

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal …

Entitlement To Punishment, Kyron J. Huigens

Articles

This Article advances the idea of entitlement to punishment as the core of a normative theory of legal punishment's moral justification. It presents an alternative to normative theories of punishment premised on desert or public welfare; that is, to retributivism and consequentialism. The argument relies on H.L.A. Hart's theory of criminal law as a "choosing system," his theory of legal rules, and his theory of rights. It posits the advancement of positive freedom as a morally justifying function of legal punishment.

An entitlement to punishment is a unique, distinctive legal relation. We impose punishment when an offender initiates an ordered …

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Legacies Of Pragmatism, Robert L. Tsai

Faculty Scholarship

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don't self-consciously characterize themselves in such terms. I also contend that pragmatism …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Submission To The Ministry Of Justice On Judicial Review: Proposals For Reform – ‘Prospective Invalidation/Overruling’, Samuel Beswick

All Faculty Publications

The Government Response to the Independent Review of Administrative Law proposes to provide judges a discretionary power to grant prospective-only remedies in judicial review proceedings. It further proposes to legislate a presumption or a requirement of prospective-only remedies when statutory instruments are quashed. The Government’s Report relies on arguments made in Sir Stephen Laws QC’s IRAL Submission advocating for prospective-only judicial remedies. My submission responds to the content of both documents.

The Government should abandon its proposal to legislate in favour of Prospective Invalidation in the judicial review context (and in any other context) because:

a. Prospective Invalidation violates the …

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul R. Gugliuzza

Scholarly Articles in Law Reviews & Journals

That probably seems like a bizarre Craigslist ad. It’s not real—we mocked it up for this article. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In …

Making Sense Of Nonsense Jurisprudence, Dan Priel

All Papers

Did Ronald Dworkin think morality is timeless? He did not. But he did think it was universal, right? No to that as well. Turning to jurisprudence, did he think that morality is a criterion of legal validity? No. But he thought morality is part of the law, didn’t he? Not quite. How can you say this? Is it not obvious that Dworkin was not a legal positivist? In that case, he must have been a natural lawyer. Actually, he was neither. So you’re saying that Dworkin invented a new theory of law? No, his views are a version of a …

Is The U.S. Government Violating The Safe Conducts Of Noncitizens? How A Turn To Strict Originalism Could Revitalize The Alien Tort Statute, Gabe Cahn

Cardozo Law Review

No abstract provided.

Oklahoma V. Purdue Pharma: Public Nuisance In Your Medicine Cabinet, Justin Kaufman

Cardozo Law Review

No abstract provided.

How Distinctive Should Catholic Law Schools Be?, Robert K. Vischer

Journal of Catholic Legal Studies

(Excerpt)

I was a teenager in the 1980s, and I was raised in evangelical Christian circles through which I was encouraged to listen to “Christian” rock music, not secular, which sometimes gave rise to some casuistic line drawing:

• Does U2 count as Christian? Yes, because of that line in Sunday Bloody Sunday about the victory Jesus won!

• How about Bob Dylan? Yes, but only during his three-album “born again” period!

• Amy Grant? Definitely, but even after she crossed over into the secular Top 40?

• Does the song need to mention Jesus? What if it mentions Jesus …

Teaching Jurisprudence In A Catholic Law School, Jeffrey A. Pojanowski

Journal of Catholic Legal Studies

(Excerpt)

Jurisprudence plays an important role in John Breen and Lee Strang’s history of Catholic legal education and in their prescription for its future. Legal philosophy in general, and the natural law tradition in particular, provide a central justification for the existence of distinctive Catholic law schools. They are right to argue so. As part of the broader Catholic intellectual tradition, which emphasizes the unity of knowledge and the eternal significance of mundane practice, natural law philosophy rejects mere vocationalism. It can provide the animating form and direction of a legal education that is more than one damn thing after …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Catholic University Law Review

The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.

The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses three methods, I …

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …