Jurisprudence Commons^™

Positivism And Antipositivism In Federal Courts Law, Michael Wells

Scholarly Works

What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law …

Overview Of The Role Of Precedent In The Legal System Of The United States, Ana Elena Fierro

LLM Theses and Essays

Traditionally, legal systems have been classified as either Common Law or Civil Law; scholars distinguish these systems based on their origins, as well their attitudes towards stare decisis. Common law considers precedent as a source of binding rules, while civil law does not. However, some scholars consider the methods for legal reasoning to be almost the same in every legal system. These scholars maintain that regardless of the source of law in a particular country, once a judge determines that the facts of one case are similar to those regulated by a certain rule, the judge will apply that particular …

French And American Judicial Opinions, Michael Wells

Scholarly Works

In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …

The Stare Decisis "Exception" To The Chevron Deference Rule, Rebecca White

Scholarly Works

In this article, the author discusses how Chevron intersects with one important competing norm - stare decisis. Stare decisis counsels the Court to adhere to its own decisions, particularly statutory ones, absent substantial justification for departure. To what extent should stare decisis apply when an agency's interpretation of a statute, otherwise deserving of deference under Chevron, conflicts with a prior interpretation of the statute by the Supreme Court?

This article suggests the following answer: If the Court's prior opinion upheld the agency's interpretation as one reasonable reading of the statute, but not the only one possible, and the agency thereafter …

The Canons Of Construction In Georgia: "Anachronisms" In Action, R. Perry Sentell Jr.

Scholarly Works

Two initial observations may be tendered concerning the canons of interpretations: The literature, almost uniformly, discredits them; the courts, almost uniformly, employ them. The purpose of this effort is to reflect some sense of background, and illustratively to marshal the Georgia experiences with what are perhaps the three most famous canons of interpretation.

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

Scholarly Works

It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …

The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells

Scholarly Works

Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal …

A Lost Episode Of "Meeting Of The Minds": Posner, Kelman, Holmes, And Pascal, Paul J. Heald

Scholarly Works

SCENE ONE: Mr. Allen enters first, carrying a sheaf of photocopied papers, and sits behind the desk. Next enter Mr. [Richard] Posner, Mr. [Blaise] Pascal, Mr. [Oliver Wendell] Holmes, and Mr. [Mark] Kelman all carrying similar papers. Holmes and Posner take seats to Allen's right; Kelman and Pascal seat themselves to Allen's left.

MR. ALLEN: Gentlemen, I would like to thank you for coming. I know that Mr. Pascal has had an especially difficult trip. I myself just flew in from the coast, and boy are my arms tired (polite chuckles from Posner and Kelman).

As you know, we are …

The Evolution Of Law: Continued, Alan Watson

Scholarly Works

In my book The Evolution of Law I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrations and for them and for other readers who, whether convinced of the thesis or not, would like further evidence, I want here to bring forward a few extra significant examples.

Why Professor Redish Is Wrong About Abstention, Michael Wells

Scholarly Works

Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the choice …

Law In A Reign Of Terror, Alan Watson

Scholarly Works

A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in …

The Future Of The Common Law Tradition, Alan Watson

Scholarly Works

What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Freedom From Claims And Defenses: A Study In Judicial Activism Under The Uniform Commerical Code, Julian B. Mcdonnell

Scholarly Works

The suggestion that we might today learn something about the judicial process in such a staid area of private law may seem surprising. After all, has not the Federal Trade Commission "repealed" the holder in due course rule thus tossing negotiable instruments into the dust bin? Have not the remaining technical questions been answered by the "detail and rigid precision" of the Uniform Commercial Code so lamented by Professor Gilmore? Surely, the attentive observer of the role of the courts might conclude that there is nothing left for the judicial policy maker in the field of bills and notes. The …

In Their Own Image: The Reframing Of The Due Process Clause By The United States Supreme Court, J. Ralph Beaird

Scholarly Works

A distinguished constitutional scholar recently pointed out that "many of the important decisions of the Supreme Court of the United States are not based on law in the popular sense of that term." It is true, he noted, that "the court endeavors to identify Constitutional clauses upon which to hang its pronouncements." "[S]ome key words and phrases in the Constitution," however, "are so highly indeterminate that they cannot really qualify as law in any usual sense." Rather, he said, "they are semantic blanks--verbal vacuums that may be filled readily with any one of many possible meanings." Thus, it is not …

The Prospects For Individual Freedom: Toward Greater Fairness For All, J. Ralph Beaird, C. Ronald Ellington

Scholarly Works

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.

Imagine that on June 1, 2001, the latest issue of United States Law Week listed the following cases for oral argument at the next October term of the United States Supreme Court....

Judicial Opinion Analysis, John J. Daley

LLM Theses and Essays

The aim of this paper is to suggest a method of judicial opinion analysis. This method has five essential aspects: 1) form; 2) procedure; 3) precedential value; 4) authority; and 5) substance. Observation of these aspects in judicial opinions should broaden legal and jurisprudential perspective and cause critical analysis of case dispositions.

The School Of Law Observes Its Centennial Year: Harvard's Dean Pound Delivers Lectures, Roscoe Pound

Other Lectures and Presentations

Dean Emeritus Roscoe Pound of the Law School of Harvard University came to the Georgia campus in early February and delivered a series of three lectures. Dean Pound, now in his ninetieth year, is the outstanding legal scholar in America and perhaps in the world. His visit was the highlight of the Centennial of the University of Georgia School of Law. The lectures had to do with the science of law, a subject to which he has devoted seventy years as a lawyer, supreme court justice, author, and law teacher.

Law Finding Through Experience and Reason, Three Lectures (University of …