Jurisprudence Commons^™

Rethinking The Penalty Phase, Kyron Huigens

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This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …

Afterword And Response: What Digging Does And Does Not Do, Patricia D. White

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No abstract provided.

Copyright At The Supreme Court: A Jurisprudence Of Deference, Marci A. Hamilton

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No abstract provided.

Amatory Jurisprudence And The Querelle Des Lois, Peter Goodrich

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It is my view, and here, no doubt, I am pre-empting my conclusion, that what literary and feminist historicism recognizes as the querelle des femmes, the debate as to the status and political role of women, is in fact underpinned and motivated by a much less explicit, yet nonetheless portentous, querelle des lois. The querelle des femmes, in other words, was always a polemic as to the legal status of women, as to their definition and role in theology and jurisprudence, canon and civil law. More than that, however, what the recovery of amatory jurisprudence can help to show is …

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach

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When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party …

Duellism In Modern American Jurisprudence, David G. Carlson

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No abstract provided.

What Is A Human Right? Universals And The Challenge Of Cultural Relativism, Paul Dubinsky, Jeremy Waldron, Tracy Higgins, Michel Rosenfeld, Ruti Teitel

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The article explores the tension between the universality of human rights and the challenges posed by cultural relativism, emphasizing the need to reconcile these perspectives to address human rights violations effectively. While human rights are foundational and inherent to all individuals, their application must navigate cultural, moral, and legal complexities. The discussion highlights the importance of dialogue and adaptability in upholding universal principles while respecting diverse contexts.

Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks

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The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …

Supermajority Rules As A Constitutional Solution, John O. Mcginnis, Michael B. Rappaport

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No abstract provided.

In Praise Of The Efficiency Of Decentralized Traditions And Their Preconditions, John O. Mcginnis

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No abstract provided.

The Cutting Edge Of Poster Law, Michael A. Heller

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Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

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No abstract provided.

How To Do Things With Hegel, David G. Carlson

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The article argues that contract is not merely a tool for pre-existing personalities but is instead constitutive of personality itself. It challenges the conventional view that personality exists prior to law, instead positing that contract is necessary for the emergence and recognition of personality. The author contends that contract is foundational to legal and personal identity, as it establishes mutual recognition and rights between individuals.

The End Of The Market: A Psychoanalysis Of Law And Economics, Jeanne L. Schroeder

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The perfect market is the end of all actual markets - it is their ideal form. In normative economics, actual markets are the means of achieving the end or ideal of the perfect market. But this means that to achieve a perfect market would result in the end of all actual markets.

Despite the centrality of the ideal of the perfect market in the subset of law and economics scholarship based on classical price theory, there is surprisingly little literature on its parameters. In this Commentary, Professor Schroeder examines this literature in order to explicate the nature of this ideal. …

Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog

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I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …

Logic And Elements. (Premises And Conclusions: Symbolic Logic For Legal Analysis)." , Richard D. Friedman

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We may happily agree with Holmes that logic is not the life of the law' and yet contend that logic should play a significant role in legal discourse. Logic cannot demonstrate the truth of premises, and so by itself it cannot demonstrate the merits of a legal argument. Moreover, even given the premises, it may be that a leap of faith, or intuition, has an irreducible role at least in some good legal arguments.2 But at least a sound legal argument will not be an illogical one. An argument will not be persuasive if it appears to violate basic principles …

Mapping Mediation: The Risks Of Riskin's Grid, Kimberlee K. Kovach, Lela P. Love

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We use maps for orientation and guidance. A topographical map and compass guide us through unmarked terrain. To pass a bar exam, law students follow a course carefully mapped out by BAR/ BRI. To understand political configurations, we study maps of the world, indicating countries and states and their boundaries. Maps are important. They create paradigms or "boxes" within which to operate safely and efficiently. The universe a map depicts-what is put in and what is left out-must have an internal cohesion, logic, and accuracy. If not, maps misguide their users.

Estoppel In Property Law, Stewart E. Sterk

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The article explores the complex role of estoppel doctrine in property law, emphasizing its promise-based nature and its distinct application compared to contract law. It highlights how estoppel enforces promises, resolves disputes, and protects interests in property law, particularly in family and neighbor disputes. The analysis critiques the reliance vs. promise debate, asserting that promise is the critical factor. The article also underscores the challenges of enforcing oral promises and the importance of written agreements to avoid injustice and ensure clarity in property transactions.

The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham

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No abstract provided.

Who’S Afraid Of Humpty Dumpty: Deconstructionist References In Judicial Opinions, Madeleine M. Plasencia

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This Article examines the treatment of deconstruction in United States judicial opinions.' A handful of cases have directly referred to the French philosopher and literary theorist, Jacques Derrida.2 In each of these cases, the court has rejected Derrida's philosophy, apparently out of a fear that recognition of any legitimacy of Derrida's thoughts would lead to the self-destruction of the legal world. These courts have misunderstood that consideration or recognition of Derrida's philosophy in the legal context would not unavoidably lead to the end of all meaningful legal discourse in the United States. A discussion of these cases will serve as …

Introduction To Panel Five: The Inter-Subjectivity Of Objective Justice: A Theory And Praxis For Constructing Latcrit Coalitions, Elizabeth M. Iglesias

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No abstract provided.

The Jurisprudence Of Yogi Berra, Edward H. Cooper, Grace C. Tonner

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Lawrence Peter "Yogi" Berra was born on May 12, 1925, in St. Louis, Missouri, and grew up to become one of baseball's all-time greats. Yogi played nineteen years in the Major Leagues, eighteen with the New York Yankees and one with the New York Mets He has been called the greatest Yankee catcher ever. During his career, Yogi played in a record fourteen World Series and was elected the American League's Most Valuable Player three times. Following his playing career, Yogi managed both the Yankees and the New York Mets, and coached the Yankees, Mets, and Houston Astros. He received …

Towards A (Bayesian) Convergence?, Richard D. Friedman

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If I understand them correctly, several leading Bayesioskeptics (Allen, Callen, Stein) acknowledge - with varying degrees of specificity and varying degrees of grudgingness - that standard probability theory can be useful as an analytical tool in considering evidentiary doctrines and the probative value of evidentiary items.

Answering The Bayesioskeptical Challenge, Richard D. Friedman

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In recent years, some scholars of evidence, myself among them, have made active use of subjective probability theory - what is sometimes referred to as Bayesianism - in thinking about issues and problems related to the law of evidence. But, at the same time, this use has been challenged to various degrees and in various ways by scholars to whom I shall apply the collective, if somewhat misleading, label of Bayesioskeptics. I present this brief paper to defend this use of probability theory, and to discuss what I believe is its proper role in discourse about evidentiary issues.

Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider

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As I write, the Supreme Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy …

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

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No abstract provided.

"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

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Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

Rape, Race, And Representation: The Power Of Discourse, Discourses Of Power, And The Reconstruction Of Heterosexuality, Elizabeth M. Iglesias

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No abstract provided.

Cardozo's Allegheny College Opinion: A Case Study In Law As An Art, Michael Townsend

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This Article consists of two related pieces. One piece considers interpretations of Cardozo's opinion in Allegheny College v. National Chautauqua County Bank. Cardozo commonly is placed among the greatest American judges, but his "analysis in Allegheny College is regularly criticized as contrived and artificial." This Article attempts to resuscitate the reputation of his analysis by placing the case in its historical and doctrinal context. The other piece continues the elaboration of a framework introduced in a previous article for thinking about law as a discipline. Central to this framework is a particular conception of the western intellectual tradition in …

An Epilogue To The Age Of Pound, Thomas A. Green

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Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.