Jurisprudence Commons^™

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …

Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg

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The article discusses Benjamin N. Cardozo's essay "Law and Literature," which emphasizes the essential unity of style and substance in legal writing. Cardozo argues against the notion that law and literature are separate domains, asserting that effective legal communication requires a harmonious integration of form and function. He advocates for a judicial writing style that prioritizes clarity, precision, and the "magisterial" approach, which eschews ornamentation in favor of substance.

Mitochondrial Dna Replacement: Moral And Halakhic Concerns, J. David Bleich

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Mitochondrial DNA (mtDNA), transmitted from mother to child, have their own genetic code that may cause debilitating genetic diseases. To prevent such unfortunate occurrences, researchers have developed a process enabling them to completely replace an ovum’s mitochondria with mitochondria contributed by a donor. Children born by use of this method have genetic material from both the mitochondrial donor and the birth mother; they are “three-parent babies.” Resultant medical, ethical, legal and theological problems are obvious.

Moreover, this technology may pose significant risks to neonates born of such procedures. Certainly no person has the right to cause harm to a fellow …

Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb

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This article provides context for and examines aspects of the design process of a game for learning. Lost & Found (2017a, 2017b) is a tabletop-to-mobile game series designed to teach medieval religious legal systems, beginning with Moses Maimonides’ Mishneh Torah (1180), a cornerstone work of Jewish legal rabbinic literature. Through design narratives, the article demonstrates the complex design decisions faced by the team as they balance the needs of player engagement with learning goals. In the process the designers confront challenges in developing winstates and in working with complex resource management. The article provides insight into the pathways the team …

Indigenous Autonomy In Colombia: State-Building Processes And Multiculturalism, Pablo Rueda-Saiz

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This article shows a novel facet in the complex relation between multiculturalism, the state and the market. Contrary to conventional theories in political science, sociology and anthropology, it shows that it is not just the success, but also the failure of the state and the market to commoditise nature and turn it into property that can actually help to foster ethnic identity. While state-driven market incentives to expand the agricultural frontier in Colombia during the 1960s and 1970s failed, they did help to foster differentiated indigenous identities and organisations, which converged around the revival of long-forgotten nineteenth century indigenous laws …

Rethinking Criminal Contempt, John A.E. Pottow, Jason S. Levin

Articles

It is of course too early to tell whether we are in a new era of bankruptcy judge (dis)respectability. Only time will tell. But this Article performs a specific case study, on one discrete area of bankruptcy court authority, based upon a particular assumption in that regard. The assumption is this: certain high-salience judicial events-here, the recent Supreme Court bankruptcy judge decisions, coupled with earlier constitutional precedents involving the limits of Article III-can trigger overreaction and hysteria. Lower courts may read these Supreme Court decisions as calling into question the permissibility of certain bankruptcy court practices under the Constitution, and …

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

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Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …

Erie Step Zero, Alexander A. Reinert

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Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

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Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

The Gibbons Fallacy, Richard A. Primus

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In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …

Speaking Law: Towards A Nuanced Analysis Of 'Cases', Susanne Baer

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“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court’s decision in the conflict about female teachers wearing headscarves in German public schools may be …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

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This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Finally, A True Elements Test: Mathis V.United States And The Categorical Approach, Rebecca Sharpless

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No abstract provided.

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

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No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

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Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

What Remains "Real" About The Law And Literature Movement?: A Global Appraisal, Richard H. Weisberg

Articles

The article explores the enduring relevance and global expansion of the Law and Literature movement, emphasizing its unique contribution to legal discourse by analyzing how narratives reveal the operation of law, the interpretations of legal authorities, and the identifiable causes of legal errors. It argues that literary jurisprudence provides a distinct methodology for understanding jurisprudence, challenging traditional legal scholarship and offering insights into systemic injustices and pathways to justice.

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

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The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

What Fascism Teaches Us, Arthur Jacobson

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The article argues that fascism represents a perverted extreme of conservatism that seeks to protect tradition through the total abandonment of reason and the use of violence. By analyzing the omissions in Leo Strauss's political framework, the analysis posits that the only effective response to the fascist challenge is a model of reason rooted in revelation—specifically the rabbinic Jewish tradition—which provides an irrational basis for maintaining a rational community.

Beyond Severability, Lisa Marshall Manheim

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Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act.

Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of …

Justice Scalia, The 2016 Presidential Election, And The Future Of Church-State Relations, Marci A. Hamilton

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No abstract provided.

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

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Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

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No abstract provided.

Individualized Injunctions And No-Modification Terms: Challenging "Anti-Reform" Provisions In Arbitration Clauses, Myriam E. Gilles

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The Supreme Court’s recent decisions in AT&T Mobility v. Concepcion and American Express v. Italian Colors have considered only whether class actions for monetary damages may be barred by arbitration clauses requiring individual adjudication. The Justices have not examined the enforceability of arbitration clauses or arbitral rules which explicitly prohibit claimants from seeking or arbitrators from granting broad injunctive relief in an individual dispute. I term these "anti-reform" provisions because they broadly prohibit an individual arbitral claimant from seeking to end a practice, change a rule, or enjoin an act that causes injury to itself and to similarly-situated non-parties. This …

Mos Americanus Or Common Law In Partibus Infidelium, Peter Goodrich

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No abstract provided.

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

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In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

Why Instrumentalism Matters, Kyron J. Huigens

Articles

Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.

The Special Tribunal For Lebanon: A Defense Perspective, Charles Chernor Jalloh

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This Article analyzes the absence of organs tasked with guaranteeing the rights of the defense in international criminal law. It explains the historical origins of the problem, tracing it back to the genesis of modern prosecutions at the Nuremberg International Military Tribunal. It then explains how the organizational charts of the UN courts for the former Yugoslavia, Rwanda, and Sierra Leone omitted the defense and essentially treated it as a second class citizen before the eyes of the law. This sets the stage for the author to show why the creation of the first full-fledged defense organ in international criminal …

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

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A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

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The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

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Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.