Jurisprudence Commons^™

A Tournament Of Virtue, Lawrence B. Solum

Faculty Scholarship

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …

Popular? Constitutionalism?, Larry Alexander, Lawrence B. Solum

Faculty Scholarship

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, …

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Faculty Scholarship

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes - mostly …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

Procedural Justice, Lawrence B. Solum

Faculty Scholarship

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, …

The Layers Principle: Internet Architecture And The Law, Lawrence B. Solum, Minn Chung

Faculty Scholarship

This essay addresses the fundamental questions of Internet governance: whether and how the architecture of the Internet should affect the shape and content of legal regulation of the global network of networks. Our answer to these questions is based on the concept of layers, the fundamental architectural feature of the Internet. Our thesis is that legal regulation of the Internet should be governed by the layers principle - the law should respect the integrity of layered Internet architecture. This principle has two corollaries. The first corollary is the principle of layer separation: Internet regulation should not violate or compromise the …

A Constitution For Judicial Lawmaking, Adam N. Steinman

Faculty Scholarship

When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

To Our Children’S Children’S Children: The Problems Of Intergenerational Ethics, Lawrence B. Solum

Faculty Scholarship

This essay serves as the introduction to the Loyola of Los Angeles Law Review's symposium on intergenerational justice. The importance of this topic cannot be overstated. Intergenerational ethics bears on questions of environmental policy, health policy, intellectual property law, international development policy, social security policy, telecommunications policy, and a variety of other issues.

Part II, Clarifying the Problems of Intergenerational Ethics, is a first sketch of the scope and nature of intergenerational justice, introducing a variety of cases and contexts in which issues of intergenerational ethics arise and distinguishing between the political and moral dimensions of these issues. Part …

Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman

Faculty Scholarship

This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its …

Why The Eleventh Amendment Always Matters, Even When Transaction Costs Are Zero: A Reply To Professor Farber, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …