Law Commons^™

Justices As Economic Fixers: A Response To A Macrotheory Of The Court, Scott Baker, Adam Feibelman, William P. Marshall

Faculty Publications

No abstract provided.

The Limits Of Advocacy, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that the parties have overlooked or ignored—on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Mapp v. Ohio, 367 U.S. …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

What Screen Do You Have In Mind? Contesting The Visual Context Of Law And Film Studies, Richard K. Sherwin

Articles & Chapters

Law on the screen gives rise to a distinct way of doing jurisprudence. In this sense, it is incumbent upon legal scholars to discern with great care the kind of reality and the way of being that cinematic and electronic screens invite us to assume. Jurisprudence theorizes law in accordance with the cultural and cognitive meaning making tools at its disposal: story frames, character types, social scenarios, metaphors, as well as cultural and socially embedded or constructed emotional patterns, among other narratival and purely sensational elements. Law and film studies thus may be viewed as encompassing a larger concern with …

The Continuity Of Justification Defenses, Kyron J. Huigens

Articles

This Article presents a legal theory of legal justification. It examines the elements of offense definitions and justification defensesor, more accurately, the conjunctions and disjunctions between these elements-to resolve a longstanding issue in the theory of legal punishment. The unjustified actor who believes she is justified seems to deserve an acquittal, while the justified actor who does not know he is justified seems to deserve conviction. But we face a dilemma: we seem to have to acquit both or convict both. This Article shows a principled way to rule the mistakenly unjustified actor within, and the mistakenly justified actor out …

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

I will consider some of the differences between epistemic reasons and reasons for action, and use these differences to illuminate a major division between types of normative reasons, which I will call ‘adaptive’ and ‘practical’ reasons. A few clarifications of some aspects of the concept of epistemic reasons will lead to a distinction between standard and non-standard reasons (section 1). Some differences between epistemic and practical reasons will be described and explained in section 2, paving the way to generalising the contrast and explaining the difference between adaptive and practical reasons (section 3). sections 4 and 5 further explain and …

Comments On Roger Cotterrell's Essay, 'The Struggle For Law: Some Dilemmas Of Cultural Legality', Robin West

Georgetown Law Faculty Publications and Other Works

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

Scholarly Works

Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The …

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

Louisiana Law Review

No abstract provided.

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Cornell Law Faculty Publications

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over …

Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey

Dalhousie Law Journal

Canadian jurisprudence has explicitly recognized the impact of child pornography on the privacy rights of the children abused in its production. In contrast, it has generally not analyzed other forms of harmful expression, such as hate propaganda and obscenity,to be violations of the privacy rights of those targeted. In a previous article, the author suggested that this distinction in the jurisprudence reflected the relative ease with which the privacy interests of the individual children whose abuse is documented inchild pornography meshed with the prevalent Western approach toprivacy as a negative individual liberty against intrusion. Noting the historic role that the …

Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski

Dalhousie Law Journal

Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

On Writing: The Essay In Jurisprudence, Claire Grant

Journal of Legal Education

No abstract provided.

From The Editors, Mark Tushnet, Carrie Menkel Meadow

Journal of Legal Education

No abstract provided.

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

Public Law, Private Law, And Legal Science, Chaim Saiman

Working Paper Series

This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by …

Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger

Law Faculty Scholarly Articles

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)—the first federal administrative agency—in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court's effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new …

Justice Kennedy's Gendered World, David S. Cohen

South Carolina Law Review

No abstract provided.

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

Cornell Law Faculty Publications

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 …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan

Working Paper Series

This review essay of Mary Ann Glendon's Traditions in Turmoil (2006) explores such topics as tradition, moral discourse, human rights, subsidiarity, natural law, the common good, civil society, and constitutional and statutory interpretation. In doing so, it provides an introduction both to Catholic social thought and to the thought of Bernard Lonergan.

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

The Force Of Law: The Role Of Coercion In Legal Norms, Ekow N. Yankah

University of Richmond Law Review

No abstract provided.

The Tropicalization Of Proportionality Balancing: The Colombian And Mexican Examples, Luisa Conesa

Cornell Law School Inter-University Graduate Student Conference Papers

In “The Tropicalization of Proportionality Balancing: the Colombian and Mexican Examples” the author analyzes how the German based proportionality balancing test was exported to Latin America, by studying the Colombian Constitutional Court and the Mexican Supreme Court. This work is guided by the following questions: what is proportionality balancing? How has it been used by the Colombian and Mexican jurisprudences and what are its influences? Do the Courts cite other jurisdictions when using the test? Have they imported a traditional European test? Or, have they “tropicalized” it?

The study of the Latin American examples leads to the conclusion that the …

Reviving The Subject Of Law, Penelope J. Pether

Working Paper Series

This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, …

Pigs Do Fly: A New Test Limiting The Scope Of Arbitration Clauses In South Carolina, Stephanie R. Lamb

South Carolina Law Review

No abstract provided.

Why Is It A Crime To Stomp On A Goldfish? Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes …

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz, Derek Stafford

Law & Economics Working Papers Archive: 2003-2009

Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure—operationalized as the professional and social connections between judicial actors—partially directs outcomes in the hierarchical federal judiciary.

Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its nature. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely …