Jurisprudence Commons^™

Daniel Arises: Notes (Such As 30 And 31) From The Schlagaground*, Richard H. Weisberg

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The article critiques the state of legal academia, arguing that it has become mired in mediocrity and disconnected from the pursuit of justice and creative thinking. It contends that legal education and scholarly discourse have been stifled by a focus on narrow, unimaginative logic, leading to a decline in intellectual rigor and a failure to inspire meaningful change.

The Continuity Of Justification Defenses, Kyron J. Huigens

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This Article presents a legal theory of legal justification. It examines the elements of offense definitions and justification defensesor, more accurately, the conjunctions and disjunctions between these elements-to resolve a longstanding issue in the theory of legal punishment. The unjustified actor who believes she is justified seems to deserve an acquittal, while the justified actor who does not know he is justified seems to deserve conviction. But we face a dilemma: we seem to have to acquit both or convict both. This Article shows a principled way to rule the mistakenly unjustified actor within, and the mistakenly justified actor out …

The Pluralistic Universe Of Law Towards A Neo-Classical Legal Pragmatism, Susan Haack

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After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).

Rethinking Indivisibility: Towards A Theory Of Supporting Relations Between Human Rights, James W. Nickel

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No abstract provided.

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

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The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …

Midstream Mediator Evaluations And Informed Consent, John W. Cooley, Lela P. Love

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No abstract provided.

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles C. Jalloh

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No abstract provided.

Deterrence, Retributivism, And The Law Of Evidence, Richard A. Bierschbach, Alex Stein

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Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories-most prominently, those of deterrence and retributivism.' Scholars, students, and policymakers laud or condemn doctrines based on notions of "just deserts" or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding …

Mediating Rules In Criminal Law, Richard A. Bierschbach, Alex Stein

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This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law's deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law's dominant animating theories-deterrence and …

The Wait Is Over: Chevron As The Stealth Vermont Yankee Ii, Paul R. Verkuil

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The article argues that the Chevron doctrine has effectively served as a means to moderate the hard-look review of agency rulemaking, rendering the anticipated Vermont Yankee II case unnecessary. It posits that Chevron's deference to agency interpretations of statutes has softened the impact of State Farm's stringent arbitrary-and-capricious review standard, aligning more closely with the judicial restraint envisioned by Vermont Yankee.

The Jurisprudence Of Punishment, Kyron J. Huigens

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No abstract provided.

On Logic In The Law: Something, But Not All, Susan Haack

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In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the "logical theology" of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of "axioms and corollaries"; and this element of truth is not obviated by the more powerful logical techniques that are now available.

Peer Review And Publication: Lessons For Lawyers, Susan Haack

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No abstract provided.

Second Annual Culp Latcrit Lecture The Constitution Of Terror: Big Lies, Backlash Jurisprudence, And The Rule Of Law In The United States Today, Francisco Valdes

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No abstract provided.

Is A Gift Forever?, William I. Miller

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What are the rules regarding gifts you receive? Can you give them away? If so, must you conceal that you have done so from the original giver? Or is there a statute of limitations, after which any right the original giver has to feel wronged or to burden you with guilt for undervaluing it by giving it away rightly expires? Even an heirloom might exhaust its sacredness. Sometimes the sacred has a half-life, as might be the case, for instance, with your grandmother’s dining set. Can the giver ask for his gifts back if you try to give them away? …

The Demise Of Federal Takings Litigation, Stewart E. Sterk

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For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …

Dworkin In The Desert Of The Real, David G. Carlson

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The article critically examines Ronald Dworkin's jurisprudence, particularly his theory of right answers, and defends it against critiques that his approach to law and language creates an unbridgeable gap between theory and practice. Dworkin's central argument is that law has an essence that judges must discover through reflective equilibrium, emphasizing the incommensurability between the judge's act and the symbolic order of law. While critics argue that this approach leads to nihilism, Dworkin counters by asserting that conventionalists are contradictory and that justice, as a decision, necessarily transgresses the domain of law.

Equality And The Dialectic Between Identity And Difference, Michel Rosenfeld

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Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which callfor a type …

Liberalism, Normative Expectations, And The Mechanics Of Fault, Kyron J. Huigens

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No abstract provided.

The Death Penalty's Future: Charting The Crosscurrents Of Declining Death Sentences And The Mcveigh Factor, Scott E. Sundby

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No abstract provided.

Textualism In Gatt/Wto Jurisprudence: Lessons For The Constitutionalization Debate, Dongsheng Zang

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Today, the World Trade Organization (WTO) jurisprudence is subject to tremendous controversy, the WTO panels' or Appellate Body's interpretation of a WTO text is often heatedly debated; and yet, there seems not much attention paid to the general methodology of interpretation in the practice of the General Agreement on Tariff and Trade (GATT) and WTO jurisprudence, even in a recent debate over constitutionalization between Petersmann and his critics. In rejecting his human rights approach to constitutionalization, Petersmann's critics, rightfully, warn him that he has failed to appreciate the complex relations between human rights and free trade in the history of …

Public Law Limitations On Privatization Of Government Functions, Paul R. Verkuil

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The privatization movement is on the verge of succeeding too well. The fact that some of what government does can be done better and cheaper by the private sector has gained such momentum that the public sector is sometimes seen as redundant or irrelevant. But the economist's make-or-buy choice simply fails to capture the full range of responsibilities that government faces in deciding whether to outsource a particular function to private contractors.

This Article illuminates the public dimension of government functions. By exploring the public-private distinction and relating it to constitutional, statutory, and administrative requirements, it structures an argument that …

On Legal Pragmatism: Where Does "The Path Of The Law" Lead Us?, Susan Haack

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No abstract provided.

On Commonplace Punishment Theory, Kyron J. Huigens

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No abstract provided.

Rabbinic Legal Magic: A New Look At Honi's Circle As The Construction Of Law's Space, Suzanne Last Stone

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The article reinterprets Honi the Circle Drawer's actions as a legal performative, arguing that his act of drawing a circle constitutes the creation of a legal space rather than a magical ritual. By establishing a jurisdictional boundary, Honi compels a divine response, illustrating a sophisticated legal framework within rabbinic culture. This analysis challenges the view of early rabbinic practices as primarily magical, instead emphasizing their legal underpinnings and the use of rituals to establish jurisdiction.

Satirical Legal Studies: From The Legists To The Lizard, Peter Goodrich

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Satirical legal studies utilize humor and ridicule to critique the pretensions and follies of the legal profession and academia, transcending traditional boundaries and challenging established hierarchies. By blending satire with legal critique, this genre exposes the social and political dimensions of law, advocating for inclusivity and radical change. Despite facing backlash, satire remains a vital tool in legal discourse, offering fresh perspectives and engaging forms that keep legal studies dynamic and relevant.

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

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Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …

Duress Is Not A Justification, Kyron J. Huigens

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No abstract provided.

Gaming Delaware, William Wilson Bratton

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No abstract provided.

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

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No abstract provided.