Jurisprudence Commons^™

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 …

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 …

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

Faculty Scholarship

No abstract provided.

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

For And Against Marriage: A Revision., Anita Bernstein

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 …

The Legacy Of Buckley V. Valeo, Joel Gora

Faculty Scholarship

No abstract provided.

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.

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 …

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.

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 …

Book Review, Matthew D. Adler

Faculty Scholarship

No abstract provided.

To Our Children’S Children’S Children: The Problems Of Intergenerational Ethics, Lawrence B. Solum

Faculty Scholarship

This essay serves as the introduction to the Loyola of Los Angeles Law Review's symposium on intergenerational justice. The importance of this topic cannot be overstated. Intergenerational ethics bears on questions of environmental policy, health policy, intellectual property law, international development policy, social security policy, telecommunications policy, and a variety of other issues.

Part II, Clarifying the Problems of Intergenerational Ethics, is a first sketch of the scope and nature of intergenerational justice, introducing a variety of cases and contexts in which issues of intergenerational ethics arise and distinguishing between the political and moral dimensions of these issues. Part …

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.

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 …

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.

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 …

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, …

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 …

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 …

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 …

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 …