Law Commons^™

Reading Poets, Joseph P. Tomain

Faculty Articles and Other Publications

Lawrence Joseph, the poet, has been the subject of a symposium published by the University of Cincinnati Law Review. Lawrence Joseph, the nonfiction novelist, has been similarly honored by the Columbia Law Review. With the publication of The Game Changed, his work should be so recognized and he should be given scholarly attention as a critic/essayist. Joseph the lawyer/poet/scholar has developed a jurisprudence of his own. Joseph’s jurisprudence, however (and to the good), cannot be reduced to a single word like originalism, or even a label like liberal democratic (though he may be in fact). Rather, the resultant jurisprudence refracts …

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

All Faculty Scholarship

Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

International Legal Positivism And Legal Realism, D. A. Jeremy Telman

Law Faculty Publications

This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.

With its forthright embrace of the inescapability of uncertainty in law, the new international legal …

Innovation In China: Fragmentation, Structured Uncertainty, And Technology Standards, Michael Murphree, Dan Breznitz

Cardozo Law Review de•novo

This Article discusses the history of China’s attempts to develop indigenous technology standards. A case study is presented on China’s attempts to develop digital optical storage media standards, the failure of which we attribute to fragmentation of production and structured uncertainty in China’s economy. Despite the market failures of China’s domestic standards development efforts, we conclude by highlighting some of the appurtenant benefits they produce for Chinese manufacturers.

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Critical Legal Histories In Eu Law, Fernanda G. Nicola

American University International Law Review

No abstract provided.

Nino’S Nightmare: Legal Process Theory As A Jurisprudence Of Toggling Between Facts And Norms, William N. Eskridge Jr.

Saint Louis University Law Journal

No abstract provided.

Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy

Cleveland State Law Review

This Article analyzes the jurisprudence of one of the most transformative Supreme Court Justices, William J. Brennan, Jr., from the perspective of his vision that the United States Constitution is founded on Human Dignity. Justice Brennan expressed this principle in his opinions that advanced the realization of individual rights for each and every American. The principle of human dignity invokes the values of equality and liberty. The article shows that Justice Brennan traced the principle of human dignity back to the Founding Fathers and the constitutional government that they established. Rather than being unhinged from the Constitution as his critics …

The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona

St. Thomas Law Review

This article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states.

The Bp B1 Bundle Ruling: Federal Statutory Displacement Of General Maritime Law, John Costonis

Journal Articles

Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Legal Thought In Enlightenment’S Wake, Jeffrey A. Pojanowski

Journal Articles

A review of Steven D Smith, The Disenchantment of Secular Discourse (Harvard University Press, 2010) 264 pp, Hbk £20.95, ISBN 978-0674050877.

This review essay considers Steven D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about …

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Faculty Publications

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent.

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes and identifies the deficiencies …

The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon

Osgoode Hall Law Journal

In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted …

A Structuralist Approach To The Two State Action Doctrines, Justin Deystone

Publications

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not …

The Forgotten Remedy: A Legal And Theoretical Defense Of Intermediate Scrutiny For Gender-Based Affirmative Action Programs, Ajmel Quereshi

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Legal Latin Americanism, Jorge L. Esquirol

Faculty Publications

No abstract provided.

The Illusory Eighth Amendment, John F. Stinneford

American University Law Review

No abstract provided.

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

Articles

This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

Jurisdictional Standards (And Rules), Adam L. Muchmore

Vanderbilt Journal of Transnational Law

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements--"rules" and "standards"--to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency of extraterritorial regulation to …

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary E. Berkheiser

Scholarly Works

No abstract provided.

The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman

Pepperdine Law Review

No abstract provided.

Images Of Men In Feminist Legal Theory , Brian Bendig

Pepperdine Law Review

No abstract provided.

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Taking Note Of Notes: Student Legal Scholarship In Theory And Practice, Andrew Yaphe

Journal of Legal Education

No abstract provided.

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed …

From Grutter To Fisher: Is Justice Sandra Day O’Connor’S Legacy In Danger?, Kristina M. Campbell

The University of New Hampshire Law Review

[Excerpt] “This paper explores the impact of Justice O’Connor on the Court’s race and education jurisprudence, both in the context of primary through secondary school education and in public universities. Section II outlines Justice O’Connor’s biography and explores several external influences on the Justice. Section III reviews the Court’s race and education jurisprudence prior to Justice O’Connor’s appointment to the Court. Section IV exposes the Court’s jurisprudence in this area during Justice O’Connor’s time on the Court, with an emphasis on those opinions authored by Justice O’Connor. Section V offers an analysis of the aftermath of Justice O’Connor’s race and …

Promises Policies And Principles The Supreme Court And Contractual Obligation In Labor Relations, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.