Jurisprudence Commons^™

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

Scholarly Works

Professor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory. …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

The Possibility Of Naturalistic Jurisprudence: Legal Positivism And Natural Law Theory Revisited, Dan Priel

Articles & Book Chapters

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as …

The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber

Maryland Law Review

No abstract provided.

Picking And Choosing Text: Lessons For Statutory Interpretation From The Philosophy Of Language, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Textualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put the thumb on the scales of any interpretation. When one pulls a term out of a statute and isolates it from the rest of the text (what I call “isolationist” method), this decontextualization offers the opportunity for adding and subtracting meaning from the statute by “pragmatic …

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

Nevada Law Journal

No abstract provided.

Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld

Northwestern University Law Review

It is widely recognized that the American criminal system is in a state of crisis, but views about what has gone wrong and how it could be set right can seem chaotically divergent. This Essay argues that, within the welter of diverse views, one foundational, enormously important, and yet largely unrecognized line of disagreement can be seen. On one side are those who think the root of the present crisis is the outsized influence of a vengeful, poorly informed, or otherwise wrongheaded American public and the primary solution is to place control over the criminal system in the hands of …

Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel

Georgetown Law Faculty Publications and Other Works

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …

Revolutionary Disobedience, Philip K. Y. Lau

Barry Law Review

Over the past few decades, civil disobedience has become one of the most widely studied subjects in jurisprudence. Scholars such as Rawls and Dworkin have offered their unique reflections on the subject. Whilst many have made great contributions to clarify its purposes and justifications, they have neglected one of the most important and fundamental forms of political disobedience, namely revolutionary disobedience. Unlike an act of civil disobedience, which recognizes governmental authority and legitimacy, revolutionary disobedience explicitly denies and challenges them. Manifested as a rupture between the constituent power (ruled/governed) and constituted power (ruler/governor) in a given state, it is designed …

Unilateral Jurisdiction To Provide Global Public Goods: A Republican Account, Aravind Ganesh

Brooklyn Journal of International Law

Failures of international cooperation with regard to protecting the environment, regulating cross-border competition, and preventing terrorism have sometimes lead states to enact unilateral measures with extraterritorial effect. A common trend among international legal scholars defending these measures is to employ the concept of ‘global public goods,’ understood as desirable, utility-advancing things that tend, for various reasons, to be undersupplied by states acting separately. On this view, unilateral measures are justified on grounds that they address ‘harms’ to ‘interests’ that cannot be contained within individual states, or because they advance supposedly universal ‘values.’ Drawing from the ‘republican’ legal and political philosophy …

The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, John E. Finn

Concordia Law Review

This Article considers the civic constitutionalist nature of the Preamble to the Bill of Rights. Civic constitutionalism is a mode of reading constitutional texts that considers power in political, as opposed to legal, terms. Thus, the civic constitution gives citizens, not judges, the primary duty for ensuring a constitutionally compliant society. This Article also presents the underlying reasons, effects, and costs of the obscurity of the civic constitution and, more specifically, the Preamble to the Bill of Rights.

Law And Recognition-- Towards A Relational Concept Of Law, Ralf Michaels

Faculty Scholarship

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My …

James Dewitt Andrews: Classifying The Law In The Early Twentieth Century*, Richard A. Danner

Faculty Scholarship

This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in …

Truth And Politics: A Symposium On Peter Simpson's Political Illiberalism: A Defense Of Freedom., Gerard V. Bradley

Journal Articles

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about values are more involved with how persons' lives go than, perhaps, ever before.

Of course, any community which has …

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

The Teaching Of International Law, Myres S. Mcdougal

Georgia Journal of International & Comparative Law

No abstract provided.

The Teaching Of International Law, Edward Mcwhinney

Georgia Journal of International & Comparative Law

No abstract provided.

The Proper Reach Of Territorial Jurisdiction: A Case Study Of Divergent Attitudes, Philippe Schreiber

Georgia Journal of International & Comparative Law

No abstract provided.

The Proper Reach Of Territorial Jurisdiction: A Case Study Of Divergent Attitudes, Robert Y. Jennings

Georgia Journal of International & Comparative Law

No abstract provided.

The Place Of Policy In International Law, Richard A. Falk

Georgia Journal of International & Comparative Law

No abstract provided.

The Place Of Policy In International Law, Oscar Schachter

Georgia Journal of International & Comparative Law

No abstract provided.

Introductory Statement, Rosalyn Higgins

Georgia Journal of International & Comparative Law

No abstract provided.

Who Are You Calling Irrational?, Aneil Kovvali

Northwestern University Law Review

Nudges are interventions that encourage people to make particular choices by shaping the context in which the choices are made. These interventions can have major impacts because of quirks in the way that human beings process information. Cass Sunstein places nudges at the core of a regulatory philosophy of “libertarian paternalism,” which suggests that while the government should generally preserve the freedom of citizens to make their own choices, it should also intervene to improve on the choices it deems self-destructive. In Why Nudge?, Sunstein defends libertarian paternalism against John Stuart Mill’s Harm Principle, which holds that the government …

The Territorial Principle In Penal Law: An Attempted Justification, Patrick J. Fitzgerald

Georgia Journal of International & Comparative Law

No abstract provided.

Rights Versus Duties, History Department Lawyering, And The Incoherence Of Justice Stevens’S Heller Dissent, Nicholas J. Johnson

Fordham Urban Law Journal

No abstract provided.

Justice Scalia And The Rule Of Law: Originalism Vs. The Living Constitution, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating …

Toward A Political Theory For Private International Law, John Linarelli

Scholarly Works

Private international law presents a dilemma for legal and political philosophy. Legal and political philosophers have ignored private international law, with only a few scattered attempts to evaluate its claims. Private international law offers a powerful set of counterexamples that put into serious doubt attempts to link law’s authority only or primarily to relationships between states and citizens. No society, state, or other practice-mediated relationship can serve as grounds for the authority of private international law to persons to whom it applies but who are outside of such relationships. Private international law affects the normative situations of persons entirely outside …

Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian Mccall

Faculty Articles

Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature. Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny? If such a power to bind to laws made by humans is justified, what is its scope? The answers to these related questions explored in this Article are both descriptive and normative. This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Mitchell Hamline Law Review

No abstract provided.