Law Commons^™

An Interdisciplinary Approach To The Legal History Of Northern Ireland (1921-1948): Methods And Sources, Molly Lentz-Meyer

Law Faculty Publications

Approaches from legal scholarship include primary sources such as statutes and case law, as well as legislative histories which legal scholars rarely consider ‘history’ in the same way as historians. Rather, legal scholars often look to legislative histories to discern the intent of the legislature in enacting laws for the sole purpose of interpreting a statute’s meaning. This study utilises the research tools employed by legal scholars – statutory law, case law, and legislative histories – to examine the establishment of the legal system in Northern Ireland. The study will focus on the early period of devolution (1921 – 1948) …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

Credibility In Empirical Legal Analysis, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Empirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop …

The Elusive Zone Of Twilight, Michael Coenen, Scott M. Sullivan

Journal Articles

In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a "tripartite" framework for evaluating exercises of presidential power. Regarding the middle category of that framework, Justice Jackson famously suggested that presidential actions undertaken "in absence of either a congressional grant or denial of authority" implicate "a zone of twilight," within which "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." Since the articulation of this idea some seventy years ago, the Supreme Court has furnished little …

Critical Race Theory As Intellectual Property Methodology, Anjali Vats, Deidre A. Keller

Book Chapters

This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In …

Ethical Testing In The Real World: Evaluating Physical Testing Of Adversarial Machine Learning, Kendra Albert, Maggie Delano, Jonathon Penney, Afsaneh Ragot, Ram Shankar Siva Kumar

Articles, Book Chapters, & Popular Press

This paper critically assesses the adequacy and representativeness of physical domain testing for various adversarial machine learning (ML) attacks against computer vision systems involving human subjects. Many papers that deploy such attacks characterize themselves as “real world.” Despite this framing, however, we found the physical or real-world testing conducted was minimal, provided few details about testing subjects and was often conducted as an afterthought or demonstration. Adversarial ML research without representative trials or testing is an ethical, scientific, and health/safety issue that can cause real harms. We introduce the problem and our methodology, and then critique the physical domain testing …

Anthrogogy: Towards Inclusive Law School Learning, Rebecca C. Flanagan

Faculty Publications

At the time it was introduced, andragogy did offer benefits over “chalk and talk;” where most law students passively took notes while one student at a time actively engaged with their professor in a Socratic dialogue. While andragogy has sustained several modifications and revisions over the last fifty years, it does not reflect the life stage or life experiences that blur the boundaries of childhood and adulthood for over half the current student body in most law schools. Andragogy, designed as a teaching methodology for traditional adults seeking continuing education or to gain credentials for upward mobility in their current …

Arguing With Friends, William Baude, Ryan D. Doerfler

All Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

Introduction: Does Labour Law Need Philosophical Foundations?, Hugh Collins, Gillian L. Lester, Virginia Mantouvalou

Faculty Scholarship

This chapter examines the relationship between labour law and its philosophical foundations. It suggests that it is essential to stand back from political compromises, which are often the subject of labour law scholarship, to consider the key attributes of the subject and its foundational goals and principles. It proposes that we need a normative account of labour law in order to assess its shortcomings and propose reforms, but also that the most important reasons for pursuing a philosophical agenda concern the continuing existence of the subject of labour law and the paradigm around which it is built. Having made the …

A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki

UF Law Faculty Publications

Part I explains the processes for specifying a Scenario. It introduces the Scenario that will serve as the illustration in the remainder of this Article—a comparison of the liability of directors for the exercise of poor judgment in a Delaware corporation with the corresponding liability in a United Kingdom public limited company. Part II explains and illustrates the necessity of selecting specific entity types for comparison. Part III describes and illustrates the method for resolving the Scenario in both jurisdictions. Part IV explains and illustrates the novel process for close comparison—the extraction, juxtaposition, and comparison of decisional rules from the …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Law As Instrumentality, Jeremiah A. Ho

Faculty Publications

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Law As Instrumentality, Jeremiah A. Ho

All Faculty Scholarship

Our conceptions of law affect how we objectify the law and ultimately how we study it. Despite a century’s worth of theoretical progress in American law—from legal realism to critical legal studies movements and postmodernism—the formalist conception of “law as science,” as promulgated by Christopher Langdell at Harvard Law School in the late-nineteenth century, still influences methodologies in American legal education. Subsequent movements of legal thought, however, have revealed that the law is neither scientific nor “objective” in the way the Langdellian formalists once envisioned. After all, the Langdellian scientific objectivity of law itself reflected the dominant class, gender, power, …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor

Law Faculty Scholarship

With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …

The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in …

Interview On The Black Box Society, Lawrence Joseph, Frank A. Pasquale

Faculty Scholarship

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?

Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only …

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

“Testing” Fuller’S Forms And Limits: A Brief Response To Oldfather, Bockhorst, & Dimmer, Scott R. Bauries

Law Faculty Scholarly Articles

In Triangulating Judicial Responsiveness, Chad Oldfather, Joseph Bockhorst, and Brian Dimmer give us a methodology by which we can empirically assess (among other things) the effects that argumentation has on judicial decision making. Unlike the vast majority of empirical legal scholarship of judging, the authors do not use this methodology in their current study to compare “legalist” explanations of judging with “realist” explanations of judging. Rather, the study operates almost entirely within the “legalist” frame. This is a welcome development for many reasons, one on which this Response focuses—the authors’ methodology illustrates a way of scientifically “testing” descriptive legal …

Teaching Gender As A Core Value In The Firstyear Contracts Class, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Methodological Advances And Empirical Legal Scholarship: A Note On The Cox And Miles' Voting Rights Act Study, Nancy Staudt, Tyler Vanderweele

Faculty Working Papers

In this Response, we use Professors Cox and Miles' recent study of judicial decision-making to explore what is at stake when legal scholars present empirical findings without fully investigating the structural relationships of their data or without explicitly stating the assumptions being made to draw causal inferences. We then introduce a new methodology that is intuitive, easy to use, and, most importantly, allows scholars systematically to assess problems of bias and confounding. This methodology—known as causal directed acyclic graphs—will help empirical researchers to identify true cause and effect relationships when they exist and, at the same time, posit statistical models …

Conceptualizing Aggression, Noah Weisbord

Faculty Publications

The special working group tasked by the International Criminal Court’s Assembly of States Parties to define the supreme international crime, the crime of aggression, has produced a breakthrough draft definition.

This paper analyzes the key concepts that make up the emerging definition of the crime of aggression by developing and applying a future-oriented methodology that brings together scenario planning and grounded theory. It proposes modifications and interpretations of the constituent concepts of the crime of aggression intended to make the definition sociologically relevant today and in the foreseeable future.

The Method And Role Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Complicity, Critique And Methodology, Fiona Probyn-Rapsey

Faculty of Law, Humanities and the Arts - Papers (Archive)

Contemporary cultural texts point towards the acknowledgment of complicity as a starting point for engagement with Others, with the world, readers, and histories that energize them.Here I discuss the critical role that complicity (both as an act and as a concept) plays in drawing out the complex interrelationships between historical pasts and present.

Using Ex Post Evaluations To Improve The Performance Of Competition Policy Authorities, William E. Kovacic

GW Law Faculty Publications & Other Works

Competition policy is a work in progress. Charting the future course of competition policy can benefit heavily from looking back and asking two fundamental questions. First, did the agency’s interventions produce good results? Second, did the agency’s managerial processes help ensure that the agency selected initiatives that would yield good outcomes? This article discusses how government competition authorities might use ex post evaluations of enforcement decisions, operational mechanisms, and organizational design to improve the quality of their work. Preparing performance measures and conducting evaluations provide valuable tools for answering critical questions about the administration of competition policy.

The article also …

Prolegomenon To Any Future Administrative Law Course: Separation Of Powers And The Transcendental Deduction, Gary S. Lawson

Faculty Scholarship

Federal constitutional law has a way of worming itself into just about every crevice of the law school curriculum. Civil Procedure students grapple with the Due Process Clauses, Property students ponder the Takings Clause, and Torts students must reckon with issues of federal preemption and legislative power. But few courses outside the mainstream Constitutional Law curriculum require as much sustained attention to constitutional issues as does Administrative Law.' Administrative Law courses typically involve an extensive study of procedural due process.2 They also engage, at least peripherally, in some of the most fundamental and long-lived constitutional controversies in the law of …

Reflection-In-Action: Lessons Learned From New Clinicians, Justine A. Dunlap, Peter A. Joy

Faculty Publications

Clinical legal education focuses on reflective learning, yet data collected from newer clinical faculty reveal that few schools offer training to assist new clinicians in understanding and incorporating reflective learning techniques as they make the transition from law practice to clinical law teaching. To the extent that training is offered to newer faculty, it may range from ad hoc guidance and informal mentoring to more deliberate programs, which may include periodic meetings devoted primarily to discussing clinical methodology, teaching techniques, and other issues important to newer clinical faculty. Although informal and unstructured approaches to training new clinical faculty may well …

Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke

GW Law Faculty Publications & Other Works

Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of …

Powder River Basin Coalbed Methane Financial Model (Prb-Cbm-Fm), W. Thomas Goerold

Coalbed Methane Development in the Intermountain West (April 4-5)

12 pages (includes illustrations).

Contains references.

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

I was of three minds
Like a tree
In which there are three blackbirds.

The emergence of external disciplines within legal scholarship seems to have fractured its intellectual focus. Technical and specialized academic writing, moreover, appears to be drifting ever farther from the theaters of legal action. Judge Richard Posner's latest book of essays, Frontiers of Legal Theory, challenges such perceptions: Even as it celebrates the breadth of interdisciplinary legal scholarship, it seeks coherence among myriad methodologies. Even as it delights in the abstract constructs of social science, it emphasizes their practical impact. And as one might expect of Judge …