Jurisprudence Commons^™

Marbury V. Madison As The First Great Administrative Law Decision, 37 J. Marshall L. Rev. 481 (2004), Thomas W. Merrill

UIC Law Review

No abstract provided.

Consular Absolutism: The Need For Judicial Review In The Adjudication Of Immigrant Visas For Permanent Residence, 37 J. Marshall L. Rev. 577 (2004), Maria Zas

UIC Law Review

No abstract provided.

Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004), Mark Tushnet

UIC Law Review

No abstract provided.

Foreword, Helen Meyer

William Mitchell Law Review

The William Mitchell Law Review has decided once again to dedicate one issue of this annual volume to Recent Decisions of the Minnesota Supreme Court. This issue reviews some of the court’s more important decisions from the 2003-04 term. If tradition is honored, the articles and notes you find in these pages will be thorough, well-written, and thoughtful in their analysis of each decision. This annual review is a tradition that gives our legal community a wonderful opportunity to publicly comment on the work of the court. This public testing of the court’s work is a healthy part of the …

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

Lo Stato Di Diritto E La Legittimità Della Democrazia Costituzionale, Michel Rosenfeld

Articles

No abstract provided.

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

Articles, Book Chapters, & Popular Press

In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy?

In this comment, …

Accommodating The Unauthorized Use Of Copyrighted Works For Religious Purposes Under The Fair Use Doctrine And Copyright Act § 110(3), Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Sandra Day O'Connor's Position On Discrimination, Stephen E. Gottlieb

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Foreword, Paula A. Monopoli

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Second Annual Henry Lecture: Judicial Discretion In Statutory Interpretation, Frank H. Easterbrook

Oklahoma Law Review

No abstract provided.

Reply To Judge Easterbrook: Judicial Discretion And Statutory Interpretation, Steven J. Cleveland

Oklahoma Law Review

No abstract provided.

The Immense Rumor, Peter Goodrich

Articles

The article explores the intersection of friendship and law, particularly through the lens of Jacques Derrida's theory, which posits that the concept of friendship is inherently paradoxical and shaped by legal and theological frameworks. Derrida argues that the "immense rumor" of friendship reflects a historical inability to articulate amity publicly, leading to a repression of friendship in the public sphere. This repression is rooted in the humanist tradition, which draws from Graeco-Roman and Judeo-Christian influences, emphasizing the primacy of political or communal bonds over individual friendships. The analysis reveals that legal discourses have imposed prohibitions on the role of friendship, …

Market Fundamentalism And The Trips Agreement, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Pragmatism And Judgment: A Comment On Lund, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.' I raise three questions about his analysis, two of which take off from the phrasing of his title. First, calling the present Court the Rehnquist Court is obviously easy, and I do it myself in the subtitle of my forthcoming book. Professor Lund has of course taken his charge from the conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of "the Rehnquist …

Reply To Judge Easterbrook: The Unsupported Delegation Of Conflict Adjudication In Erisa Benefit Claims Under The Guise Of Judicial Deference, Donald T. Bogan

Oklahoma Law Review

No abstract provided.

Reply To Judge Easterbrook: Regarding History As A Judicial Duty, Harry F. Tepker

Oklahoma Law Review

No abstract provided.

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal …

Judicial Independence And The Ambiguity Of Article Iii Protections, Tracey E. George

Vanderbilt Law School Faculty Publications

Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other …

Exonerations Change Judicial Views On Ineffective Assistance Of Counsel, Adele Bernhard

Articles & Chapters

Law evolves more slowly than pop culture or public attitude. Because most exonerations have not resulted in written legal opinions, their impact is slowly seeping into case law. However, courts are influenced by the same news that sways the rest of us. Even without explicitly referring to innocence or wrongful convictions, modern trial courts are undoubtedly more likely to admit expert testimony on the question of eyewitness identification because they are painfully aware of just how easily such witnesses - no matter how honest or passionate - can be wrong. They are certainly more inclined to view confessions suspiciously, especially …

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

Pierre The Anomalist: An Epistemology Of The Legal Closet, Peter Goodrich

Articles

The article examines Pierre Schlag's radical critique of legal reason and the legal academy, which challenges the profession's reliance on abstract norms and universal truths. Schlag's work, often met with hostility, exposes the material and emotional underpinnings of legal discourse, particularly the fear of losing control and status tied to the academy's faith in reason. His critique is situated within broader philosophical traditions that question the limits of reason and the importance of creativity in legal thought. The article also explores how Schlag's ideas intersect with other scholars' work, such as Reginald Leamon Robinson's analysis of legal narrative and identity, …

Introduction To The Conference On Fundamentalisms, Equalities, And The Challenge To Tolerance In A Post-9/11 Environment, Richard H. Weisberg

Cardozo Law Review

No abstract provided.

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Michigan Law Review

Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Michigan Law Review

Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …

Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule

Michigan Law Review

In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear …

Holmes, Common Law Theory, And Judicial Restraint, 36 J. Marshall L. Rev. 457 (2003), Frederic R. Kellogg

UIC Law Review

No abstract provided.

Foreword, Sam Hanson

William Mitchell Law Review

Introduction to issue of Recent Decisions of the Minnesota Supreme Court (from 2002-03 term).

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …