Law Commons^™

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Essay shifts the focus to the future, exploring how the Supreme Court's new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

A large and increasing portion of our social discourse takes place electronically, through email and texting, as well as on social media Internet

sites such as Facebook and Twitter. …

The Praise Of Silly: Critical Legal Studies And The Roberts Court, James F. Lucarello

Touro Law Review

This Comment demonstrates that the Supreme Court is lying to you in its opinions. Why is it lying? The short answer to this question is quite simple: It is being silly.

There is nothing inherently wrong with being silly. In fact, some praise silliness, as a heightened and healthy understanding of the indeterminate world that incorporates our reality. Silliness, how ever, is only praise-worthy when it is understood and utilized purposefully. The silliness of most of the Justices on the Supreme Court, on the other hand, is a product of self-delusion and fundamentalism, which makes their silliness not silly at …

Baker's Autonomy Theory Of Free Speech, Anne Marie Lofaso

West Virginia Law Review

No abstract provided.

Delinquent And Non-Entered Lands And Due Process, John W. Fisher Ii

West Virginia Law Review

No abstract provided.

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

College of Law - Faculty Scholarship

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

The Great Recession And The Rhetorical Canons Of Law And Economics, Michael D. Murray

Law Faculty Publications

THE GREAT RECESSION AND THE RHETORICAL CANONS OF LAW AND ECONOMICS, by Michael D. Murray

Abstract

The Great Recession of 2008 and onward has drawn attention to the American economic and financial system, and has cast a critical spotlight on the theories, policies, and assumptions of the modern, neoclassical school of law and economics—often labeled the "Chicago School"—because this school of legal economic thought has had great influence on the American economy and financial system. The Chicago School's positions on deregulation and the limitation or elimination of oversight and government restraints on stock markets, derivative markets, and other financial practices …

Selectica Resets The Trigger On The Poison Pill: Where Should The Delaware Courts Go Next?, Paul H. Edelman, Randall S. Thomas

Indiana Law Journal

No abstract provided.

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

All Faculty Scholarship

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …

Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison

Dalhousie Law Journal

In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …

Posner’S Pragmatism And The Turn Toward Fidelity, Edward Cantu

Faculty Works

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. This article discusses the current state of legal pragmatism, with a focus on the archetypal species espoused by Judge Richard Posner, and asks whether it has proven itself capable of contributing anything …

Standing On The Edge: Standing Doctrine And The Injury Requirement At The Borders Of Establishment Clause Jurisprudence, Mary A. Myers

Vanderbilt Law Review

The very first line of the Bill of Rights provides that "Congress shall make no law respecting an establishment of religion." This line, the Establishment Clause of the First Amendment, was motivated by the history of religious persecution that drove thousands of adherents of minority faiths in Europe to the New World to seek refuge to practice their own faith, free from the compulsion of state-established religion. The Establishment Clause remains relevant today, and the U.S. Supreme Court has been active in hearing cases involving it. For purposes of determining standing-that is, whether an individual or organization meets certain constitutional …

What Can We Hope For From Law?, Ellen S. Pryor

Pepperdine Law Review

What can a lawyer of faith hope for, and expect from, law? This Essay, based on the 2008 Louis Brandeis Lecture given at Pepperdine University, discusses why and how this question matters not just as a matter of theory but to our real-world lawyering journeys. The Essay discusses two of the frameworks that can shape our answer to the question: a natural law viewpoint and what the Essay calls a “Lutheran” view. After explaining how these two perspectives might lead to different expectations about the effects of law, the Essay discusses whether either of these approaches is more sustaining or …

The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin

San Diego Law Review

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a …

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Faculty Scholarship

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Kenya Vs. The Icc Prosecutor, Charles Chernor Jalloh

Faculty Publications

No abstract provided.

Waiting For Gaudet Charting A Course After Atlantic Sounding Co. V. Townsend, Attilio M. Costabel

St. Thomas Law Review

In Waiting for Godot, the masterpiece play by Nobel Laureate Samuel Beckett, two friends wait expectantly for someone named Godot to arrive. The friends claim him as an acquaintance, but in fact they hardly know him, admitting that they would not recognize him were they to see him. After days of waiting in vain, they pledge to commit suicide the day after, unless of course Godot arrives. At the play's end, the audience never learns if Godot arrived or if the friends committed suicide. This narrative is strikingly similar to the saga of the homonymous Supreme Court case name Gaudet-a …

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …

The Politics Of Hate, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …

Conceptualizing Shari'a In The Modern State, Khaled Abou El Fadl

Villanova Law Review (1956 - )

THIS Article addresses the animated and evolving role that Shari'a, i.e., the system of Islamic jurisprudence collectively or generally, and Shari'a conceptions play in the contemporary world. There are various manifestations of this evolving role in the often dynamic, subtle, highly negotiated, and far from formalistic ways that Shari'a is animated in today's world. There are three main points that I will address in this Article. First is to provide some insight into the various ways that Shari'a has been manifesting in the recent revolutions sweeping through the Arabic-speaking world, while at the same time contrasting the rather curious case …

Due Process In The American Identity, Cassandra Burke Robertson

Faculty Publications

In the last four years, public opinion polls have found an increasingly high level of public support for the methods applied in the war on terror. A significant majority of the population now expresses support for targeted killing through drone strikes and for the indefinite detention of suspected terrorists at Guantánamo Bay. While there are undoubtedly many dynamics at play in the public's changing views of national security and due process, this Article examines one piece of the puzzle: how the concept of due process fits within the structure of the American identity.

This Article examines due process and national …

The Viability Of An Insanity Defense In Federal Revocation Proceedings, Donna L. Eng

UF Law Faculty Publications

It's not an uncommon scenario: your client, who suffers from mental health issues, was given a probationary sentence. While on probation, your client stops taking his medication and has a mental breakdown in a public location. The police are called, and instead of just being involuntarily committed pursuant to the Baker Act, your client is also charged with violating the terms of his probation as a result of his interactions with the officers on scene.

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Publications

No abstract provided.

Symposium Introduction: Humanism Goes To Law School, Marjorie A. Silver

Touro Law Review

By now, the knowledge that law students experience more than their fair share of distress is old news. The studies about law student (and lawyer) unhappiness have been widely discussed in both academic literature and trade publications. Less well known, however, are the increasing number of programs that law schools, and individuals within those schools, have implemented to counter that distress,and to help students develop a positive professional identity,both as students and as the lawyers they are about to become.

In Good Conscience: Expressions Of Judicial Conscience In Federal Appellate Opinions, Sarah M. R. Cravens

Akron Law Faculty Publications

This article explores judicial references to what judges may or may not do, in their own words, “in good conscience.” It assesses the most common situations in which federal appellate judges use this term and it discusses the propriety of different uses and placements of those expressions of conscientious commitments that play into judicial decisionmaking. It distinguishes between expressions of primarily institutional conscience (that is, the commitment to certain institutional values, responsibilities, or limitations on what the judge may do) and expressions of primarily personal conscience (that is, the commitment to the individual values or beliefs of the judge who …

Justice John Paul Stevens, Originalist, Diane Marie Amann

Scholarly Works

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind …

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell

Vanderbilt Law School Faculty Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is …

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …