Jurisprudence Commons^™

Deportation Is Different, Peter L. Markowitz

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Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, were forced to navigate the labyrinth of immigration law alone, without appointed counsel. Others were lawul permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that …

Legal Positivism As An Idea About Morality, Martin J. Stone

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I ask what a proper critical target for 'legal positivism' might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about 'the nature of law' is, historically speaking, much more of a footnote to utilitarianism than has been recognized.

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

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Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …

Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg

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The article critiques Professor Sanford Levinson's defense of compromise in constitutionalism, arguing that while compromise is ubiquitous, it is not inherently just or morally sound. The author, Richard Weisberg, contends that Levinson's flexible hermeneutic approach risks degrading textual integrity and ethical standards, particularly when compromise is elevated to a norm. Weisberg advocates for maintaining the integrity of sacred and legal texts, emphasizing the dangers of interpretive flexibility, especially in emergencies, and draws parallels to historical examples like Vichy France's complicity in Nazi policies.

Specters Of Law: Why The History Of The Legal Spectacle Has Not Been Written, Peter Goodrich

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The article examines the intersection of law, theology, and visual/performance elements, arguing that legal discourse often overlooks the significance of typography, imagery, and theatricality. It highlights how legal texts use formatting techniques like bold and italics to convey meaning and draws parallels with theological concepts, such as the duality of power and the role of images in governance. The analysis critiques the legal tradition for neglecting these performative aspects and emphasizes the need to recognize law as a theater that denies its own theatricality.

Winn And The Inadvisability Of Constitutionalizing Tax Expenditure Analysis, Edward A. Zelinsky

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No abstract provided.

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

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The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship …

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

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No abstract provided.

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).

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.

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

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

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No abstract provided.

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.

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? …

Peer Review And Publication: Lessons For Lawyers, Susan Haack

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No abstract provided.

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.

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 …

Beautiful Dreamer: Review Of A Life Of H.L.A. Hart: The Nightmare And The Noble Dream, By Nicola Lacey, Jeanne L. Schroeder

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H.L.A. Hart is probably the most important legal theorist in the modern English-speaking world. The intriguing subtitle of Nicola Lacey's intimate biography, "The Nightmare and the Noble Dream, " echoes the name of Hart's 1997 Georgia Law Review paper, in which he identifies two warring, equally inadequate, visions of law in American jurisprudence: the "nightmare" of complete indeterminacy and unbridled judicial discretion and the "noble dream " of a closed, deterministic legal system of judicial restraint. Lacey implies that Hart's life itself was both a nightmare and a noble dream. This book review expands on Lacey's work and suggests how …

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 …