Law Commons^™

Pictures Of A Revolution: Administrative Law In A Time Of Change, Shalev Gad Roisman, Oren Tamir

Michigan Law Review

A review of multiple supplements and updates to several different titles and editions.

The Problem Of Biased Precedents, Ronen Avraham, Issachar Rosen-Zvi

Cardozo Law Review

This Article addresses the problem ofbiased precedents, wherein sophisticated repeat players, often corporate and state entities armed with superior resources and a vested interest in shaping the law, manipulate legal proceedings to systematically establish self-advantageous precedents. Specifically, by strategically choosing to litigate cases they anticipate will lead to favorable precedents and settling those expected to produce unfavorable outcomes, these players systematically bias the law over time to their advantage, at the expense of one-shot parties and society at large. The problem of biased precedents challenges the commonly held view about the efficiency and fairness of the legal system and raises …

The Limits Of Law: Lessons For Collective Bargaining, Eric J. Scarffe, Daniel Saunders

Journal of Collective Bargaining in the Academy

This paper elucidates some features of law that generally go overlooked in collective bargaining. Using examples from collective bargaining agreements at universities in Florida, we unearth how assumptions about the nature of law (championed by the conservative legal movement) may undermine the ability for unions to influence the material working conditions at their universities. We believe negotiators need to reject these assumptions, and embrace an approach to ‘bargaining as pedagogy,’ which emphasizes the need for faculty and administrators alike to arrive at shared understandings of what the law means (be it the collective bargaining agreement, university policy, or state statute).

Law, Music, Statutory Interpretation, And Schubert, Norman P. Ho

Hofstra Law Review

The law and humanities field has been dominated by law and literature. Legal scholars have, for example, analogized judges to literary authors and have tried to show how the study of literature and law can enrich both subjects. Law and music, however, has received relatively less attention. This Article argues, on its most macroscopic level, that the relationship between law and music is very close, just like the close relationship between law and literature. Previous scholarly literature in the law and music field has spoken about the affinities between law and music, but mostly on a general level and with …

Law In Society: Defending Hart, Alma Diamond

Fellow, Adjunct, Lecturer, and Research Scholar Works

I revisit the debate between Joseph Raz and H. L. A. Hart concerning the nature of legal content and reasoning. Raz contended that legal reasoning should be analyzed as a form of moral reasoning. In contrast, Hart emphasized the distinction between legal and moral content, proposing that legal reasoning is a form of what I will call social-institutional reasoning. I characterize social-institutional reasoning in terms of the agent-relative, domain-specific, universal, and content-insensitive justifications it draws upon. I evaluate Raz’s moralized analysis and argue that it obscures the distinctive contribution that law’s social and institutional grounds play in our understanding of …

Existential Threats And Deterrence: Japan's Legal Pathway To Enhanced Collective Security In Asia, Nobuhisa Ishizuka

American University International Law Review

With the Japanese Cabinet’s decision in December 2022 to comprehensively upgrade Japan’s security posture, and its rapid build-up of its defense capabilities, Japan’s role in Asia’s security architecture has been undergoing a fundamental shift. This article places Japan’s 2015 Peace and Security Legislation in the context of the U.N. collective security system and argues that its most significant achievement has been to expand Japan’s power to engage more proactively in the Asian collective security order. To date, commentators have focused on the legislation’s role in expanding the Japanese constitution’s limitations on the use of force to permit collective self-defense. This …

2025 Shepard Broad College Of Law Admissions Viewbook, Nova Southeastern University

Shepard Broad College of Law Viewbook

No abstract provided.

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

Empty Voting And Hidden Ownership In Canadian Jurisprudence, Maziar Peihani

All Faculty Publications

The classic understanding of equity encompasses a suite of economic and governance rights, which typically includes the rights to vote, receive dividends, and participate in distribution of assets upon dissolution. This conventional view, outlined in corporate legislations, is supported by Canadian jurisprudence and corporate law scholarship. However, financial innovations have facilitated the separation of voting rights from the financial entitlements of shares, creating a marketplace where shareholder interests are reconfigured and traded in diverse ways. Derivatives and securities lending arrangements have led to phenomena known as empty voting and hidden ownership. In empty voting, an investor retains voting rights without …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

Two Forms Of Formalism In Contract Law, Gregory Klass

Cardozo Law Review

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This Article addresses that need by providing a general theory of contract exposition and differentiating between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is,” the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. This Article provides a detailed analysis of …

Textualism In Practice, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the …

Interactional Ordering: Reconstructing Lon Fuller's Theory Of Private Law, Shyamkrishna Balganesh

Faculty Scholarship

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking …

Death By Jury: Jurisprudential Trends And Hybrid Capital Sentencing Authority, Jacob T. Hayes

Tennessee Journal of Law and Policy

No abstract provided.

Keynote Address: Protecting The Pillars Of Our Legal System, Bernard W. Nussbaum

Tennessee Journal of Law and Policy

No abstract provided.

The Role Of The Attorney And The Attorney Client Relationship: The Keys To Improved Public Perception Of Attorneys And The Lexus, Jeanne Marie Zokovitch Paben

Tennessee Journal of Law and Policy

No abstract provided.

Dealing With Excessive Caseloads With Litigation: Panel Two, Mark E. Stephens, Rory Stein, Max Bahner, Cara H. Drinan, Adele Bernhard

Tennessee Journal of Law and Policy

No abstract provided.

Dealing With Excessive Caseloads Without Litigation, Robert Stein, John Terzano, Norman Lefstein, Avis Buchanan, Robert Boruchowitz, Dennis Keefe, James R. Neuhard

Tennessee Journal of Law and Policy

No abstract provided.

Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah

Law & Economics Working Papers

In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

The Incoherence Of Evidence Law, G. Alexander Nunn

Faculty Scholarship

What is the purpose of evidence law? The answer might seem intuitive. Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency. But these kindred aims often come into conflict. Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere. Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible? Or does one of evidence law’s aims take precedence over the rest? And if one goal takes priority, what is the role of …

On Critical Geneaology, Bernard E. Harcourt

Faculty Scholarship

Today most critical theorists who deploy history use a genealogical method forged by Nietzsche and Foucault. This genealogical approach now dominates historically inflected critique. But not all genealogical writings today, nor all philosophical debates surrounding genealogy, advance the goals of critical philosophy. It is crucial now that we assess the value of genealogical critiques. The proper metric against which to evaluate such work is whether it contributes to transforming ourselves, others, and society in a valuable way. In this article, I propose that we use the term “critical genealogy” to identify those genealogical practices that positively nourish our activity and, …

Language, Legitimacy, And The Law: The Social Roots Of Legal Obligation, Joshua Keton

Dissertations, Theses, and Capstone Projects

In a recent turn, both legal scholarship and judicial practice in the United States have converged on the idea that the content of the law is grounded on moral facts—especially facts about democracy. Leveraging insights from the philosophy of language, especially the underdetermination of meaning by syntax and semantics, I argue that textualism can only be reconstructed as a small part of a complete theory of legal interpretation. I then consider a more serious claim to the necessity of moral facts in metaphysically grounding the content of the law. As Mark Greenberg’s anti-positivist theory would have it, the content of …

On Comprehensive Pluralism: Two Pluralistic Deficits, Daniel Bonilla Maldonado

Cardozo Law Review

A Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, …

Blunt Speech Rights, Nicholas Almendares

William & Mary Bill of Rights Journal

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of …

Immoderate Moderation: Chief Justice Roberts's Concurrence In Dobbs, Thomas J. Molony

William & Mary Bill of Rights Journal

Chief Justice John Roberts attempted to chart a middle way in Dobbs v. Jackson Women’s Health Organization. But there are times when you must choose a side. This was one of them.

The Chief Justice has been a consistent proponent of judicial restraint since he joined the United States Supreme Court in 2005. For him, one of the key characteristics of restraint is deciding no more than necessary to resolve a case. In Dobbs, he insisted that the Court did not need to overrule Roe v. Wade and Planned Parenthood v. Casey in full to uphold Mississippi’s fifteen-week …

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …

Somewhere In Between All-Or-Nothing: Suggestions For Alternatives To Marriage In South Carolina, Andrea C. Moises

South Carolina Law Review

No abstract provided.