Jurisprudence Commons^™

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray

BYU Law Review

No abstract provided.

The Virtue Of Vagueness In Takings Doctrine, Marc R. Poirier

Cardozo Law Review

In discussions of regulatory takings law, there appears to be an almost universal assumption that its vagueness is a bad thing, a mysterious dysfunction. This article argues that the vagueness in takings doctrine is quite functional and entirely appropriate. Since considerable vagueness turns out to be inevitable, this is just as well. Happily, over time, specific resource use conflicts and transitions sometimes do crystallize out into more predictable forms of law - new rules and customs about specific types of property. Within these specific and limited regimes, we can and should aspire to rules defining the circumstances under which the …

Expanded Rights Through State Law: The United States Supreme Court Shows State Courts The Way, Robert L. Brown

The Journal of Appellate Practice and Process

No abstract provided.

A Subversive Strand Of The Warren Court, Gary Peller

Washington and Lee Law Review

No abstract provided.

Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams

Washington and Lee Law Review

No abstract provided.

Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen

Washington and Lee Law Review

No abstract provided.

The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown

Washington and Lee Law Review

No abstract provided.

Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright

Washington and Lee Law Review

No abstract provided.

Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter

Cardozo Law Review

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Washington and Lee Law Review

No abstract provided.

Unsheathing Alexander's Sword: Lapides V. Board Of Regents Of The University System Of Georgia, Eric S. Johnson

American University Law Review

No abstract provided.

United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell

American University Law Review

No abstract provided.

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.

Michigan Law Review

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …

The Concept Of Equality In Civil Procedure, William B. Rubenstein

Cardozo Law Review

No abstract provided.

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

The Evolution Of The "Essential Nexus": How State And Federal Courts Have Applied Nollan And Dolan And Where They Should Go From Here, J. David Breemer

Washington and Lee Law Review

No abstract provided.

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Legal Context: Reading Statutes In Light Of Prevailing Legal Precedent, Bradford Mank

Faculty Articles and Other Publications

An important question is when judges should consider contextual evidence about the meaning of a statute. Judges usually will read a statute's text in light of judicial precedent prevailing at the time of its enactment to understand the contemporary meaning of various words or phrases in the statute.' A more difficult issue is whether courts should consider contemporary judicial context if a statute's text is silent about an issue. The use of contemporary context to imply statutory meaning has been especially controversial where the issue is whether courts should imply a private right of action.

Effectuating Censorship: Civic Republicanism And The Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002), Brandon K. Lemley

UIC Law Review

No abstract provided.

Freedom Of The Private-University Student Press: A Constitutional Proposal, 36 J. Marshall L. Rev. 139 (2002), Brian J. Steffen, John E. Ferguson

UIC Law Review

No abstract provided.

Reflecting On The Virtual Child Porn Decision, 36 J. Marshall L. Rev. 211 (2002), David L. Hudson

UIC Law Review

No abstract provided.

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

Scholarly Works

Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …

The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson

UIC Law Review

No abstract provided.

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall …

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

The Law And Large Numbers, Paul H. Edelman

Vanderbilt Law School Faculty Publications

Can mathematics be used to inform legal analysis? This is not a ridiculous question. Law has certain superficial resem­blances to mathematics. One might view the Constitution and various statutes as providing "axioms" for a deductive legal sys­tem. From these axioms judges deduce "theorems" consisting of interpretation of these axioms in certain situations. Often these theorems are built on previously "proven" theorems, i.e. earlier decisions of the court. Of course some of the axioms might change, and occasionally a theorem that was once true becomes false; the former is a common feature of mathematics, the latter, though theoretically not possible in …

System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter

Cardozo Law Review

Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project - the part on which this article focuses - develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible …