Jurisprudence Commons^™

Prudentialism In Mcdonald V. City Of Chicago, Neil S. Siegel

Faculty Scholarship

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.

The Court’s recent decision in McDonald v. City of …

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

Rethinking The Constitutional Criminal Procedure Of Juvenile Transfer Hearings: Apprendi, Adult Punishment And Adult Process, Jenny E. Carroll

Faculty Scholarship

This article makes valuable new contributions to the burgeoning scholarly discourse on Apprendi v. New Jersey-a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt. Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found by a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Foreword: Poverty Law Issue, Ann Juergens

Faculty Scholarship

This Poverty Law Issue provides testimony as to why and how the legal profession, the government, and society can better provide justice for people of small means. Overall, this Poverty Law Issue contributes to understanding how we may ensure that the difficulty of poverty borne by our fellow citizens does not become compounded by injustice. For when justice is compromised for one group, its integrity as a whole may rightly be questioned.

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

I will consider some of the differences between epistemic reasons and reasons for action, and use these differences to illuminate a major division between types of normative reasons, which I will call ‘adaptive’ and ‘practical’ reasons. A few clarifications of some aspects of the concept of epistemic reasons will lead to a distinction between standard and non-standard reasons (section 1). Some differences between epistemic and practical reasons will be described and explained in section 2, paving the way to generalising the contrast and explaining the difference between adaptive and practical reasons (section 3). sections 4 and 5 further explain and …

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

No abstract provided.

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …

Pregnancy And Sex-Role Stereotyping, From 'Struck' To 'Carhart', Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …

U.S. Class Actions And The "Global Class", George A. Bermann

Faculty Scholarship

Robert Casad's articles on comparative civil procedure were among the first comparative law pieces that caught my eye when, as a freshly-minted associate at a leading New York law firm, I found myself leafing through comparative law journals, rather than amassing billable hours. I had no idea then that comparative law could be as fascinating as I have come to find it, certainly not in a field like civil procedure where the dividends of comparative law work were by no means obvious to me. (Comparative law was not even taught in any guise at Yale Law School in the late …

An Ounce Of Prevention: Solving Some Unforeseen Problems With The Proposed Amendments To Rule 56 And The Federal Summary Judgment Process, Adam N. Steinman

Faculty Scholarship

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the …

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.

Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

The Politics Of The Rule Of Law, Joseph Raz

Faculty Scholarship

This article is about the political significance and the moral justification of the rule of law in one country, i.e., Britain. Its conclusions apply to other countries in proportion to the degree to which their political culture is similar to the British one.

Reason, Reasons And Normativity, Joseph Raz

Faculty Scholarship

All normative phenomena are normative in as much as, and because, they provide reasons or are partly constituted by reasons. This makes the concept of a reason key to an understanding of normativity. Believing that, I will here present some thoughts about the connection between reasons and Reason and between Reason and normativity.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Reinventing Appellate Jurisdiction, Adam N. Steinman

Faculty Scholarship

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for …

Theorizing The Law/Politics Distinction: Neutral Principles, Affirmative Action, And The Enduring Legacy Of Paul Mishkin, Robert C. Post, Neil S. Siegel

Faculty Scholarship

Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

'Less' Is 'More'? Textualism, Intentionalism, And A Better Solution To The Class Action Fairness Act's Appellate Deadline Riddle, Adam N. Steinman

Faculty Scholarship

In recent months, federal appellate judges have grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 (CAFA) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite -- it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have …

Do Defendants Pay What Juries Award - Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988-2003, David A. Hyman, Bernard S. Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988-2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received "haircuts." Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus pre-judgment …

Devilry, Complicity, And Greed: Transitional Justice And Odious Debt, David C. Gray

Faculty Scholarship

The doctrine of odious debts came into its full in the eighteenth and early nineteenth century to deal with the financial injustices of colonialism and its stalking horse, despotism. The basic rule, as articulated by Alexander Sack in 1927, is that debts incurred by an illegitimate regime that neither benefit nor have the consent of the people of a territory are personal to the regime and are subject to unilateral recision by a successor government. While the traditional doctrine focused on the nature and circumstances of individual debts, it has been expanded in recent years, moving the focus from the …