Jurisprudence Commons^™

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

Brooklyn Law Review

Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …

Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum

Brooklyn Law Review

Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of …

Mechanical Turk Jurisprudence, Shlomo Klapper

Brooklyn Law Review

This paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency.

Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail

Brooklyn Law Review

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …

Which America?: Judge Roger L. Gregory And The Tradition Of African-American Political Thought, Daniel Fryer

Washington and Lee Law Review

In this Article, written in connection with a symposium honoring Chief Judge Roger L. Gregory’s twenty years on the bench, I place Judge Gregory’s jurisprudence within the tradition of African-American political thought. I suggest that, at bottom, Judge Gregory has a leveling-up jurisprudence that seeks to interpret the Constitution in a way that ensures the least well-off in society are granted the same rights as the most privileged. This brand of democratic theorizing approximates a mainstream position by Black political theorists optimistically seeking to have the least well-off integrated into a fully equal society. By comparing and contrasting his work …

Deodand, Brian L. Frye

Seattle University Law Review Online

Deodands are a delightful example of a common law doctrine that caused something to happen: the Crown was enabled to tax tortfeasors. But not in a way anyone expected at the time or anyone understands today. Look on their logic and despair. You’ll never figure it out, no matter how hard you try. And that’s what makes them so lyrical. The concept of the deodand is beautiful even though we can’t understand it. Or rather, it’s beautiful because we can’t understand it. If we understood deodands, surely they would be as prosaic as life insurance and conceptual art.

In 1964, …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Spirit Of The Corporation, Russell Powell

Seattle University Law Review

Christian theologians have analyzed the productive and destructive qualities of institutions, sometimes attributing to them human virtues and vices. In City of God, Saint Augustine describes a utopian vision of human community within a Christian context as an alternative to the flawed “City of Man.” Contemporary theologians and sociologists have described collective structures of human behavior in institutions as having a kind of “spirit” analogous to the individual human “spirit.” Institutions are then assumed to take on an existence separate from the individuals within them, and in fact, the “spirit” of an institution influences the behavior of individuals. In The …

The Virginia Company To Chick-Fil-A: Christian Business In America, 1600–2000, Joseph P. Slaughter

Seattle University Law Review

The Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. is one of its most controversial in recent history. Burwell’s narrow 5–4 ruling states that the Religious Freedom Restoration Act of 1993 applies to closely held, for-profit corporations seeking religious exemptions to the Affordable Care Act. As a result, the Burwell decision thrust Hobby Lobby, the national craft chain established by the conservative evangelical Green family of Oklahoma City, Oklahoma, onto the national stage. Firms like Hobby Lobby and Chick-fil-A, however, reject the conventional wisdom Justice Ginsburg explained in Burwell and instead embrace an approach to business with …

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Deep Cuts: Four Critiques Of Legal Ideology, Justin Deystone, Akbar Rasulov

Publications

This Article begins an effort to rekindle the intellectual tradition of critical legal theory. The context for the project is significant. On the one hand is the grip of a social crisis, the contours of which continue to confound the commentariat. Racism, xenophobia, gendered violence, migration and nation, climate change, health pandemics, political corruption. The parade is as intimidating as it is spectacular. On the other hand, the very tools of criticism we depend upon in identifying these characters in the parade, much less the spectacle of the parade itself, are themselves in crisis. There is, in a word, a …

Religious Roots Of Corporate Organization, Amanda Porterfield

Seattle University Law Review

Religion and corporate organization have developed side-by-side in Western culture, from antiquity to the present day. This Essay begins with the realignment of religion and secularity in seventeenth-century America, then looks to the religious antecedents of corporate organization in ancient Rome and medieval Europe, and then looks forward to the modern history of corporate organization. This Essay describes the long history behind the entanglement of business and religion in the United States today. It also shows how an understanding of both religion and business can be expanded by looking at the economic aspects of religion and the religious aspects of …

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Microwaving Dreams? Why There Is No Point In Reheating The Hart-Dworkin Debate For International Law, Jason A. Beckett

Faculty Book Chapters

A critique of attempts to transpose Hart and Dworkin's legal theories to international law. I demonstrate why neither approach can provide insights into international law. Hart and Dworkin are institutional theorists, their methodologies are anchored by the need to justify the exercise of socially centralised violence. International law lacks both institutions and centralised violence, and the stabilising force these bring; it is radically indeterminate. Attempts to suppress this indeterminacy have resulted in international lawyers fragmenting into communities of practice, united by their eschatological faith in the international community. I challenge this faith.

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Posthuman Dignity And The Problem Of The Body, Zachary R. Calo

Scholarly Works

This essay examines the anthropology of transhumanist and posthumanist thought, focusing on human dignity and the role of embodiment. It posits that posthumanism views the body as a barrier to achieving dignity rather than an intrinsic site of dignity, advocating for transcending biological limits towards a more dignified existence. The discourse contrasts transhumanist and bioconservative perspectives on dignity, emphasizing that dignity is not an inherent trait but is achieved through technological enhancement and the redefinition of embodiment, impacting contemporary ethical considerations in biotechnology.

Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Deystone

Publications

No abstract provided.

Making Sense Of Nonsense Jurisprudence, Dan Priel

All Papers

Did Ronald Dworkin think morality is timeless? He did not. But he did think it was universal, right? No to that as well. Turning to jurisprudence, did he think that morality is a criterion of legal validity? No. But he thought morality is part of the law, didn’t he? Not quite. How can you say this? Is it not obvious that Dworkin was not a legal positivist? In that case, he must have been a natural lawyer. Actually, he was neither. So you’re saying that Dworkin invented a new theory of law? No, his views are a version of a …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Mirror, Mirror, On The Wall—Biased Impartiality, Appearances, And The Need For Recusal Reform, Zygmont A. Pines

Dickinson Law Review (2017-Present)

The article focuses on a troubling aspect of contemporary judicial morality.

Impartiality—and the appearance of impartiality—are the foundation of judicial decision-making, judicial morality, and the public’s trust in the rule of law. Recusal, in which a jurist voluntarily removes himself or herself from participating in a case, is a process that attempts to preserve and promote the substance and the appearance of judicial impartiality. Nevertheless, the traditional common law recusal process, prevalent in many of our state court systems, manifestly subverts basic legal and ethical norms.

Today’s recusal practice—whether rooted in unintentional hypocrisy, wishful thinking, or a pathological cognitive dissonance— …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Philosophy Of Law For A Naturalist: An Introduction To Artificial Law Theory, Dan Priel

All Papers

The aim of this essay is to provide an outline for a naturalistic approach to jurisprudence. It begins by arguing for certain reorientations away from certain questions currently preoccupy legal philosophers but should not. The question of the nature of law is, as currently understood, a misguided question. The questions of the metaphysics and the normativity of law, by contrast, are problematic in a different sense: It is not clear that law raises any special questions with respect to them. Following on that I offer a more positive agenda for naturalistic jurisprudence. Starting with methodology, I argue that there is …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

Evidence-Based Jurisprudence: An Essay For Oxford, Dan Priel

Articles & Book Chapters

This essay is part of a broader attempt to put some flesh on the bones of naturalistic jurisprudence. My general aim in this essay is to show that much contemporary jurisprudence takes a very narrow understanding of its subject matter, and gives priority, to the point of exclusivity, to one methodological approach – analytic philosophy – over all others. Unlike naturalistic analytic philosophy that welcomes ideas and data from other disciplines, the approach that dominates jurisprudence sees legal philosophy as concerned with certain questions that are uniquely philosophical and to which other disciplines have little to contribute. Some have challenged …

Production, Not Dependence: The Metaphysics Of Causation And Its Role In Explanation, Responsibility, And The Law, Yuval Abrams

Dissertations, Theses, and Capstone Projects

Causation is production, not dependence. It is not merely a matter of how two facts or events covary, but about what underlies that covariation. Furthermore, causation is unified (not fragmented or plural) and is a natural relation (in the world). To cause is to make something happen, to generate. The causal nexus (the web of causal influence) consists entirely of productive positive causes. With these fixed, the (causal) dependence relations are determined.

Dependence belongs to the theory of explanation. Causal dependence is an explanatory notion: A causally explains B, in virtue of a causal relation between cause C and effect …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents