Jurisprudence Commons^™

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

The Practice Of Value – Reply, Joseph Raz

Faculty Scholarship

The privilege of having three sets of extensive and hard-hitting comments on one's work is as welcome as it is rare, and especially so on this occasion as the lectures were, for me, but the first (well, not entirely first) stab at a subject I hope to explore at greater length. The reflections that follow will respond to some of the criticisms, but will not be a point by point reply. I will use the occasion to clarify some obscurities in the lectures, and to contrast my view with some of my critics' own positions. I will proceed thematically, starting …

The Argument From Justice, Or How Not To Reply To Legal Positivism, Joseph Raz

Faculty Scholarship

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited …

Can There Be A Theory Of Law?, Joseph Raz

Faculty Scholarship

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of that place and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts …

Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne

Faculty Scholarship

This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.

Court Of Law And Court Of Public Opinion: Symbiotic Regulation Of The Corporate Management Duty Of Care, Tamar S. Frankel

Faculty Scholarship

In In re Walt Disney Co. Derivative Litigation the Delaware court exonerated the defendants for their handling of the Ovitz Affair, and yet condemned them. It is a classic example of how a court of law can make law without making law. By an obiter dictum, the Chancellor established the facts of the case and footnoted the sources much like a treatise or a casebook, recounted the general principles of the law, used strong words to describe the defendants' behavior, delved into the moral and business judgment of the defendants, and assisted the market in judging and enforcing its best …

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Faculty Scholarship

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

An Excuse-Centered Approach To Transitional Justice, David C. Gray

Faculty Scholarship

Transitional justice asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for atrocities perpetrated by and under their predecessors. The normal instinct is to prosecute criminally everyone implicated in past wrongs; but practical conditions in transitions make this impossible. As a result, most transitions pursue hybrid approaches, featuring prosecutions of those most responsible, amnesties, truth commissions, and reparations. This approach is often condemned as a compromise against justice. This article advances a transitional jurisprudence that justifies the hybrid approach by taking normative account of the unique conditions that define …

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

Faculty Scholarship

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Defining Dicta, Maxwell L. Stearns, Michael Abramowicz

Faculty Scholarship

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counterintuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining …

The Scope And Jurisprudence Of The Investment Management Regulation, Tamar Frankel

Faculty Scholarship

This Essay reviews three periods of investment company regulation by the Securities and Exchange Commission. It focuses on the period of 1975 to 2000 in which the Commission granted exemptions on conditions, thus deregulating and reregulating, case by case and finally codifying the exemptions in an exemptive rule. The Essay analyses this form of rule-making and compares it to prosecution, settlements, and initial rule-making that typifies the recent years. The Essay concludes that the common law method of legislation, especially when it involves a "bargain" between the regulators and law-abiding regulated institutions who wish to innovate, is likely to lead …

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence And The Detention Of Enemy Combatants, Sarah H. Cleveland

Faculty Scholarship

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution – that "Eighteenth-Century sketch of a government hoped for" – struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Rescuing Federalism After Raich: The Case For Clear Statement Rules, Thomas W. Merrill

Faculty Scholarship

The Rehnquist Court's federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court's decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

A Constitution For Judicial Lawmaking, Adam N. Steinman

Faculty Scholarship

When courts decide cases, the decisions make law because they become precedent that binds future courts under the doctrine of stare decisis. This article argues that some principles governing judicial lawmaking are functionally constitutional principles because they go to the validity of a particular attempt at judicial lawmaking (just as the constitutional principles governing legislative lawmaking determine the validity of lawmaking by legislatures). Because even poorly reasoned judicial decisions can still be effective lawmaking acts, it is important to distinguish between constitutional and non-constitutional principles and arguments. While a non-constitutional principle can be a basis for examining the wisdom or …

The Logic Of Legal Theory: Reflections On The Purpose And Methodology Of Jurisprudence, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

Speech And Strife, Robert L. Tsai

Faculty Scholarship

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation …

Incorporation By Law, Joseph Raz

Faculty Scholarship

My purpose here is to examine the question of how the law can be incorporated within morality and how the existence of the law can impinge on our moral rights and duties, a question (or questions) which is a central aspect of the broad question of the relation between law and morality. My conclusions cast doubts on the incorporation thesis, that is, the view that moral principles can become part of the law of the land by incorporation.

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

Toyota Jurisprudence: Legal Theory And Rolling Rule Regimes, William H. Simon

Faculty Scholarship

The engineering ideas associated with the Toyota Production System form a model of social organization that departs from bedrock assumptions of mainstream legal thought in both its rights-and-principles and law-and-economics variants.

In contrast to mainstream thought, the Toyota system (1) emphasizes the goals of learning and innovation (rather than of dispute resolution and the vindication of established norms and preferences), (2) combines the normative explicitness associated with formal rules with the continuous adjustment to particularity associated with informal norms (no dialectic of rules and standards), (3) treats normative decisionmaking in hard cases as presumptively collective and interdisciplinary (rather than the …

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

Solving Problems Vs. Claiming Rights: The Pragmatist Challenge To Legal Liberalism, William H. Simon

Faculty Scholarship

Recent developments in both theory and practice have inspired a new understanding of public interest lawyering. The theoretical development is an intensified interest in Pragmatism. The practical development is the emergence of a style of social reform that seeks to institutionalize the Pragmatist vision of democratic governance as learning and experimentation. This style is reflected in a variety of innovative responses to social problems, including drug courts, ecosystem management, and "new accountability" educational reform. The new understanding represents a significant challenge to an influential view of law among politically liberal lawyers over the past fifty years. That view, Legal Liberalism, …