Jurisprudence Commons^™

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen F. Ross

Faculty Scholarship

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

A Tribute To Peter S. Popovich, James F. Hogg

Faculty Scholarship

A tribute to Peter S. Popovich, Chief Justice of the Minnesota Supreme Court 1989-1990 and William Mitchell College of Law alumni.

The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

The national debate regarding federal habeas corpus for state prisoners is fueled in the main by ideology. To some, the authority of the federal courts to entertain constitutional challenges to state criminal convictions is the embodiment of all that was right about the Warren Court and the vision that Court offered of a meaningful system of American liberty, underwritten by independent federal tribunals willing and able to check the coercive power of government. By this account, the Bill of Rights is the protean source of safeguards for individual freedom - commanding generous, imaginative, and insightful elaboration by federal courts at …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

The Supreme Court Of Israel: Formative Years, 1948-1955, Pnina Lahav

Faculty Scholarship

This article looks at the institutional and jurisprudential development of the Israeli Supreme Court in its early stages.

Abortion, Incommensurability, And Jurisprudence, Joan C. Williams

Faculty Scholarship

No abstract provided.

The Rationality Of The Common Law, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Bracton, The Year Books, And The "Transformation Of Elementary Legal Ideas" In The Early Common Law, David J. Seipp

Faculty Scholarship

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer's specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional …

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …

Rethinking Harmless Constitutional Error, A. Kimberley Dayton

Faculty Scholarship

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …

The Misadventures Of State Postconviction Remedies, Larry Yackle

Faculty Scholarship

In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Critical Legal Studies: The Death Of Transcendence And The Rise Of The New Langdells, Joan C. Williams

Faculty Scholarship

No abstract provided.

Legal Fiction, James Boyle

Faculty Scholarship

No abstract provided.

Law And Morality: A Kantian Perspective, George P. Fletcher

Faculty Scholarship

The relationship between law and morality has emerged as the central question in the jurisprudential reflection of our time. Those who call themselves positivists hold with H.L.A. Hart that calling a statute or a judicial decision "law" need not carry any implications about the morality of that statute or decision. Valid laws might be immoral or unjust. Those who resist this reduction of law to valid enactments sometimes argue, with Lon Fuller, that moral acceptability is a necessary condition for holding that a statute is law; or, with Ronald Dworkin, that moral principles supplement valid enactments as components of the …

The Reluctant Witness For The Prosecution: Grand Jury Subpoenas To Defense Counsel, Stacy Caplow

Faculty Scholarship

No abstract provided.

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Aspects Of Puritan Jurisprudence; Comment On Berman, Revolution And Law: Ii The Puritan Revolution And English Law, Barbara Aronstein Black

Faculty Scholarship

In his learned and informative lecture on the Puritan Revolution and English law, Professor Berman tells us that England in the seventeenth century witnessed fundamental, revolutionary change, both religious and legal; a "Puritan belief system" became dominant and the English constitution and laws were transformed. According to Professor Berman, while there have been studies of the interconnections between religious change and constitutional change, nobody has attempted to relate overall change in the legal system to change in the belief system. However, "the new law that emerged in England as a result of the upheavals of 1640 and 1689 must be …

Equal Divisions In The Supreme Court: History, Problems, And Proposals, William L. Reynolds, Gordon G. Young

Faculty Scholarship

No abstract provided.

The Exhaustion Doctrine In Federal Habeas Corpus: An Argument For A Return To First Principles, Larry Yackle

Faculty Scholarship

The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts …

Review Of The Law And Process Of Post-Conviction Remedies By Ira P. Robbins, Larry Yackle

Faculty Scholarship

There are days when the availability of the federal writ of habeas corpus as a vehicle for challenging criminal convictions collaterally seems assured. The arrival of Professor Robbins' new casebook is itself strong, affirmative evidence. At last a major publishing house has acknowledged that the great body of habeas corpus statutes, rules, and precedents warrants a full-length, hard-bound casebook for classroom use. Implicitly, surely, the publisher assumes that the postconviction writ is here to stay, that it forms a stable and legitimate part of our jurisprudence. 3 At the same time, some members of the Court, particularly Chief Justice Burger …

The Reagan Administration's Habeas Corpus Proposals, Larry Yackle

Faculty Scholarship

"Democracy," said Churchill, "means that if the door bell rings in the early hours, it is likely to be the milkman." He might have added that if the caller is not the milkman, but a police officer, Anglo-American democracy contemplates that the writ of habeas corpus will be available to the citizen awakened and dragged off into the darkness. The Great Writ has no substantive content of its own but provides the machinery for putting claims before state and federal courts-for translating substantive principles of liberty into effective law. The writ is process, but more than process. It is the …

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Reason And Law (Book Review), George C. Christie

Faculty Scholarship

Reviewing Chaim Perelman, Justice, Law and Argument: Essays in Moral and Legal Reasoning (1980)

Homo Psychologicus: Notes On A New Legal Formalism, William H. Simon

Faculty Scholarship

Having survived the assault of the Realists earlier in this century, the doctrinal tradition in legal theory and legal education is undergoing a second wave of criticism. Again, doctrinal writing and education is charged with promoting a conservative ideological perspective and with ignoring the practical tasks of lawyering. Law schools are criticized for failing both to train competent practitioners and to instill in their students an appropriate sense of "responsibility."

One of the most interesting aspects of this second wave of criticism has been the emergence of a new style of discourse about law inspired by psychology. This style, which …

Policy, Rights, And Judicial Decision, Kent Greenawalt

Faculty Scholarship

H.L.A. Hart has rightly been recognized as the outstanding contemporary figure in Anglo-American jurisprudence. His deep insight, penetrating analysis, lucid and graceful expression, and wise judgment have illumined every subject to which he has put his hand, and all who are interested in the philosophy of law have been affected by his work. It is a special privilege for me to participate in this issue devoted to publication of his Sibley lecture, because I am one of those who have been fortunate enough to have studied under him. My early efforts were exposed to his searching, but always tactful and …

Book Review, Michael E. Tigar

Faculty Scholarship

No abstract provided.

To Where Does One Attach The Horses?, Aaron Twerski

Faculty Scholarship

No abstract provided.