Jurisprudence Commons^™

Aedpa's "Adjudication On The Merits" Requirement: Collateral Review, Federalism, And Comity, Robert D. Sloane

Faculty Scholarship

The modern law of federal habeas corpus is a labyrinth of counterfactuals and arcane procedural hurdles that few state petitioners manage to navigate-as Justice Blackmun once wrote less charitably in dissent, "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights." The convoluted inquiries required arise from the need to reconcile three developments of the past four decades that remain in tension with one another: first, the Warren Court's expansion of federal habeas relief, identified with Fay v. Noia and its progeny; second, the Burger and Rehnquist Courts' curtailment of that expansion, identified with Wainwright …

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …

The Legacy Of Buckley V. Valeo, Joel Gora

Faculty Scholarship

No abstract provided.

Equality And The Forms Of Justice, Susan Sturm

Faculty Scholarship

Justice and equality are simultaneously noble and messy aspirations for law. They inspire and demand collective striving toward principle, through the unflinching comparison of the "is" and the "ought." Yet, law operates in the world of the practical, tethered to the realities of dispute processing and implementation. The work of many great legal scholars and activists occupies this unstable space between principle and practice. Owen Fiss is one such scholar, attempting to straddle the world of the here-and-now and the imagined and then deliberately constructed future, the contours of which have been established during the founding moments of our constitutional …

About Morality And The Nature Of Law, Joseph Raz

Faculty Scholarship

In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.

Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Product Liability In The United States Supreme Court: A Venture In Memory Of Gary Schwartz., Anita Bernstein

Faculty Scholarship

No abstract provided.

Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale

Faculty Scholarship

Regenerative medicine seeks not only to cure disease, but also to arrest the aging process itself. So far, public attention to the new health care has focused on two of its methods: embryonic stem-cell research and therapeutic cloning. Since both processes manipulate embryos, they alarm those who believe life begins at conception. Such religious objections have dominated headlines on the topic, and were central to President George W. Bush's decision to restrict stem-cell research.

Although they are now politically potent, the present religious objections to regenerative medicine will soon become irrelevant. Scientists are fast developing new ways of culturing the …

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David Reiss

Faculty Scholarship

No abstract provided.

Book Review, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm

Faculty Scholarship

This essay uses Owen Fiss’ treatment of equality doctrine in “Groups and the Equal Protection Clause” to demonstrate the influence of judicial role conceptions on equality jurisprudence. Fiss’ conception of the judiciary’s role in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss looks to the federal judiciary unilaterally to declare public law truths and to impose those truths on noncompliant bureaucrats. This static, almost imperial role places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, through top-down imposition. Fiss’ commitment to a …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Restatement (Third) Of Torts: General Principles And The Prescription Of Masculine Order, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Politics Of Judicial Reform In Japan: The Rule Of Law At Last?, Setsuo Miyazawa

Faculty Scholarship

The purpose of this paper is to discuss the most recent changes in Japan's political environment that could radically alter its judicial system and legal profession in the near future. Reform of the judicial system and legal profession has now been placed on the national agenda, and the cast of players involved has spread from the traditional groups of legal professionals (judges, prosecutors, and attorneys) to the major actors of the larger political process, namely the Liberal Democratic Party (Jiya Minshu T6) ("LDP"), the ruling conservative party, and the Federation of Economic Organizations (Keidanren), one of the most influential organizations …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman

Faculty Scholarship

This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its …

Why The Eleventh Amendment Always Matters, Even When Transaction Costs Are Zero: A Reply To Professor Farber, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Accounting For Family Change, Katharine B. Silbaugh

Faculty Scholarship

The legal focal point of familial obligation in the United States has long been the relationship between paired adults-most centrally marriage. Obligations to children, and rights to their company, were derivative; they were to be met through the framework of the all-important pairing of adults. Over the past several decades, that core source of legal obligation has shifted from the adult relationship between partners to the relationship between parent and child. The shift has occurred at a number of different levels, and it has had a variety of consequences, the majority of which are still shaking out. The legal catalyst …

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Judicial Auditing, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

This paper presents a simple framework for analyzing a hierarchical system of judicial auditing. We concentrate on (what we perceive to be) the two principal reasons that courts and/or legislatures tend to scrutinize the decisions of lower echelon actors: imprecision and ideological bias. In comparing these two reasons, we illustrate how each may yield systematically distinct auditing and reversal behaviors. While auditing for imprecision tends to bring about evenhanded review/reversal, auditing for political bias tends to be contingent on the first mover's chosen action. Examples of these tendencies can be found in a number of legal applications, including administrative law, …

Buckley V. Valeo: A Landmark Of Political Freedom, Joel Gora

Faculty Scholarship

No abstract provided.

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

Regulating The Market For Snitches , Ian Weinstein

Faculty Scholarship

These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …

Precedential Cascades: An Appraisal, Eric Talley

Faculty Scholarship

About a half century ago, a handful of social scientists began to formalize what was to become the analytical heart of neoclassical economics. Under the broad rubric of "general equilibrium theory," these scholars demonstrated (in varying degrees of mathematical sophistication) the longstanding intuition behind the so-called "invisible hand": that is, that competitive markets could convert apparent disarray and fragmentation into order and harmony. More explicitly, general equilibrium theory demonstrated how a decentralized collection of self-interested individuals could, through competitive market transactions, allocate scarce goods and services in a socially efficient manner. An equally powerful corollary attended this central insight: that …

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Substantial Assistance And Sentence Severity: Is There A Correlation Substantial Assistance, Ian Weinstein

Faculty Scholarship

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in …

An Old Jurisprudence: Respect In Retrospect, Anita Bernstein

Faculty Scholarship

No abstract provided.

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …