Jurisprudence Commons^™

Law's Emotions, Robin West

Georgetown Law Faculty Publications and Other Works

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the …

What If Fiduciary Obligations Are Like Contractual Ones?, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of …

Confounding Ockham's Razor: Minilateralism And International Economic Regulation, Eric C. Chaffee

Brooklyn Journal of Corporate, Financial & Commercial Law

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

The Journal of Appellate Practice and Process

No abstract provided.

Franz Kafka’S “Before The Law”: A Parable, Geoffrey L. Brackett

Pace Law Review

Despite Francis Bacon’s cautionary note, I have always been a fan of parables, and perhaps the most poignant one to speak for perils of the legal profession is Franz Kafka’s “Vor dem Gesetz” (“Before the Law”), one of the relatively few works to be published in his lifetime. It was seen first in the almanac Vom Jüngsten Tag: Ein Almanach Neuer Dichtung in December 1915 before it was included in his novel Der Prozess (The Trial), which was unpublished in his lifetime. He wrote it at one sitting on December 13, 1914, and in fewer than 650 words, Kafka illustrates …

The Third Pillar Of Jurisprudence: Social Legal Theory, Brian Z. Tamanaha

William & Mary Law Review

No abstract provided.

Realism About Judges, Richard A. Posner

Northwestern University Law Review

No abstract provided.

A Standard Of Global Justice, Steven R. Ratner

Book Chapters

This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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/="/">But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of …

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

Time-Mindedness And Jurisprudence, David Luban

Georgetown Law Faculty Publications and Other Works

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: (1) from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; (2) analytic jurisprudence studies only time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system …

The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Bonus Babies Escape Golden Handcuffs: How Money And Politics Has Transformed The Career Paths Of Supreme Court Law Clerks, Artemus Ward, Christina Dwyer, Kiranjit Gill

Marquette Law Review

Job prospects for former Supreme Court law clerks have radically changed in recent years. Beginning in 1986, skyrocketing law firm signing bonuses caused a transformation from the natural sorting system, where clerks chose among private practice, government, academic, and public interest positions, to a Bonus Baby Regime where former clerks almost always choose to work in private firms after they leave the Court. This development is a result of both financial and ideological factors. While the more conservative clerking corps of recent years has been increasingly drawn to private practice, the firms themselves hire along ideological lines. Still, while former …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …

Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Faculty Scholarship

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — …

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

No abstract provided.

Devising Law: On The Philosophy Of Legal Emblems, Peter Goodrich

NYLS Law Review

No abstract provided.

Law Among The Sight Lovers, Francis J. Mootz Iii

NYLS Law Review

No abstract provided.

Ethics And International Law: Integrating The Global Justice Project(S), Steven R. Ratner

Articles

Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should …

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

All Faculty Scholarship

Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Publications

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

The Limits Of Integrity, John D. Inazu

Scholarship@WashULaw

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not …

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang

University of Richmond Law Review

No abstract provided.