Jurisprudence Commons^™

A Sea Change In The Appellate Process?, Gerald W. Vandewalle

Seattle University Law Review

Professor David Wexler's essay is certain to engender a sense of fear in appellate judges by its very suggestion that we should undertake such a sweeping reform of the appellate process. But the suggestions should-and will-beget the gnawing feeling that Professor Wexler's analysis of the articles by Professors Nathalie Des Rosiers and Amy Ronner, as well as the questions he poses, require us to explore these ideas further. For those of us who follow the "no advisory opinions" we might stop there. For thotshee acpapneolnl aotef courts who use a screening process to divert cases to an alternative dispute resolution …

The Pursuit Of The Hunt, Interrupted: Changing Literary Image Of Law, William J. Wagner

Scholarly Articles

In the course of reaching its substantive conclusions, this article seeks to shed light on the theoretical and methodological requisites of a valid and fruitful application of literary sources in jurisprudence.

The article begins by explicating the original literary image of the pursuit of the hunt interrupted, within its thematic setting in Aeschylus. It then offers theoretical and methodological postulates for drawing out the fuller meaning for law and legal studies of the image. It explores variations on the same pattern of imagery in subsequent works of Western literature, and offers reflections on how these variations can enrich our understanding …

Acknowledgments, Jeremy Paul, Pierre Schlag

Publications

CLS 2001 Symposium - Critical Legal Studies (Debut de Siecle): A Symposium on Duncan Kennedy's A Critique of Adjudication: Fin de Siècle (1997).

Baccauaureate Mass Reflection: The Catholic Lawyer: Justice And The Incarnation, John M. Breen

Faculty Publications & Other Works

No abstract provided.

What The Jury Must Hear: The Supreme Court’S Evolving Seventh Amendment Jurisprudence, Margaret L. Moses

Faculty Publications & Other Works

No abstract provided.

Ending Male Privilege: Beyond The Reasonable Woman, Stephanie M. Wildman

Michigan Law Review

A Law of Her Own: The Reasonable Woman as a Measure of Man by Caroline A. Forell and Donna M. Matthews aspires to provide a solution for an enigmatic jurisprudential problem - the systemic failure of the legal order to recognize and to redress the injuries that women experience. Feminist scholars have agreed that, for women, the legal separation of public and private spheres often insulates from legal review behavior that harms women. But even in the so-called public sphere, women suffer harms that remain invisible and unnamed. The authors identify four legal arenas in which the "spectrum of violence …

Psychotherapeutic Practice As A Model For Postmodern Legal Theory, Francis J. Mootz Iii

Scholarly Works

Critical legal theory is in need of reconstruction and rehabilitation. By most accounts, the goal of critical legal theory is to reveal the deep structure of the legal system that remains unrecognized in, and even obscured by, the self-understanding of legal actors. Scholars traditionally moved beyond the superficial level of legal doctrine either by adopting a rationalistic orientation and analyzing legal concepts or by adopting an empiricist orientation and analyzing the economic and sociological features of legal institutions. However, during the past thirty years there has been a tremendous diversification in these critical approaches. For example, the critical legal studies …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Scholarly Works

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Foreward, Symposium: Philosophical Hermeneutics And Critical Legal Theory, Francis J. Mootz Iii

Scholarly Works

This Symposium brings the considerable talents of a diverse group of scholars to bear on a pressing problem in legal theory: Whether critical theory is possible after the hermeneutical turn. All too often, this problem is framed to invite an “either-or” response. Either we reject the hermeneutical turn and hew to a traditional account of critique anchored by an unimpeachable standard (whether economic, historical, conceptual, cognitive, or otherwise), or we take the hermeneutical turn by embracing radical historical contingency and fluidity, thereby forsaking the possibility of critique and surrendering to conservative conventionalism or inviting postmodern chaos. This Symposium challenges this …

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

Scholarly Works

No abstract provided.

Connecting Grounds Of Discrimination To Real People's Real Experiences, Dianne Pothier

Dianne Pothier Collection

From the outset, the prevailing approach to human rights statutes in Canada has been predicated on a closed list of prohibited grounds of discrimination. The early drafts of s. 15 of the Canadian Charter of Rights and Freedoms likewise had a closed list of enumerated grounds, but the final version qualifies those grounds as "in particular", opening the door for a broader application of s. 15. Nonetheless, the Supreme Court of Canada, with the exception of Justice L'Heureux-Dube, has insisted that establishing a prohibited ground, either enumerated or analogous, is a requisite condition to a s. 15 breach. In the …

Standing For Protection Of Collective Rights In The European Communities, Alison Peck

Law Faculty Scholarship

No abstract provided.

Thoughts On Some Potential Appellate And Trial Court Applications Of Therapeutic Jurisprudence, Steve Leben

Faculty Works

To date, the application of therapeutic jurisprudence principles has been concentrated mainly on specialized trial courts: drug treat­ment courts, domestic violence courts, criminal courts, and juvenile and family courts. Its application to trial courts generally, as well as its application to the appellate courts, remains largely unexplored. This Article considers three areas in which trial and appellate courts may want to consider applying therapeutic jurisprudence.

My conclusions about the application of therapeutic jurispru­dence to the appellate courts are admittedly tentative ones: my day job is sitting as a state general jurisdiction trial judge, not as an appel­late court judge. Although …

Theory's A What Comes Natcherly, Larry Alexander

San Diego Law Review

So what kind of theorizing do we do in law? First, we do empirical, predictive theorizing. We form hypotheses about how the world will be affected by various rules of law, because of their content and form, and by the design of our legal institutions. These hypotheses can be confirmed or falsified. We also form hypotheses about how particular judges will decide future cases, or how legislatures and agencies will react to various proposals. When we do legal history, we reason backwards from effects and form hypotheses about their causes. The second type of theorizing we do is normative. In …

Two Aspects Of Law And Theory, Ronald J. Allen

San Diego Law Review

In the last quarter of the twentieth century, there was much ado about law and theory, or the relationship between law and theory, or legal theory, phrases that I take to be synonymous, two aspects of which I want to discuss briefly today. With an introductory sentence like that, the normal expectation would be that the next sentence would somehow work in the phrase "about nothing," and, not wanting to be unpredictable, thus casting doubt on somebody's behavioral theory, I will fulfill this expectation by saying that a fair amount of the ado about legal theory was indeed about nothing. …

Introduction, Emily Sherwin

San Diego Law Review

Recent debate about theory in legal scholarship' has raised more questions about theory and law than it has answered. For example, just what is meant by "theory" in the context of law? Is there a form of theory that is uniquely "legal" theory, or is legal theory merely moral theory applied to law? If there is such a thing as legal theory, does the body of positive law, and particularly the decisions of judges, inform legal theory, or does theory inform law? What, if any, are the justifications for constructing theories of law?

The Brandeis Legacy, Mary Murphy Schroeder

San Diego Law Review

Louis Brandeis was the greatest lawyer of the early twentieth century, and perhaps of the entire century. He was brilliant, driven, charismatic, and absolutely devoted to improving the lives of the common people of the United States. Put in more contemporary terms, he was committed to the notion that technological and economic advances should not widen the gap between the haves and the have-nots. His causes were the environment, citizenship, freedom of expression, quality of life in the workplace, protection against increasing power wielded by large corporations, and protection of individual privacy. All were issues that emerged at the beginning …

Theories Of Areas Of Law, Michael Moore

San Diego Law Review

The topic of this symposium is "theories and the law." Since this is such an enormously broad topic, the first thing to do is to narrow it a bit. As I shall discuss it, the topic is not on the central topic of jurisprudence, which is the theory of law. My topic is theories within our law, rather than theories about the nature of law in general. Often we call such theorizing internal to the law we have, "internal jurisprudence," to be contrasted with an "external jurisprudence" that is about law as such. Within internal jurisprudence, there is still considerable …

Theory Minimalism, Stanley Fish

San Diego Law Review

We must begin with a sense of what theory is, and I shall derive mine from a question Herbert Wechsler often put to his students. "Ask yourself," he would say, "'Would I reach the same result if the substantive interests were otherwise?"" The challenge of the question is to the student who has determined where the right lies in a disputed matter, and who now must demonstrate that, even if every circumstantial particular of the case were varied-if the plaintiff were a woman instead of a man, if the object of hate speech was a descendant of someone who came …

Retribution In Criminal Theory, Douglas N. Husak

San Diego Law Review

I will focus on three separate but intimately related dimensions of what I have identified as Moore's central theme. In Part H, I examine his views

about the data from which a theory of the criminal law is to be constructed. In Part I, I discuss his account of the rationale of punishment. In Part IV, I scrutinize his defense of legal moralism as a theory of legislative aim. I express general misgivings about the extraordinarily central place Moore affords retribution in his account of the criminal law as it exists today. I want to stress at the outset, however, …

Cultivating The Genetic Commons: Imperfect Patent Protection And The Network Model Of Innovation, Jonathan M. Barnett

San Diego Law Review

This Article enters this debate and argues the following position. Assuming that antitrust authorities persist in certain strategies to impede patent consolidation, the recent introduction of patent rights for certain biotechnological innovations is likely to encourage private investment in the genetic commons and reduce (or, at least, not enhance) the accessibility costs that could stunt technological advance. To reach this conclusion, this Article shows that the two leading theories of patent protection, the "incentive" theory7 and the "prospect" theory,8 do not explain private industry's willingness to sink significant investment capital into highly uncertain biopharmaceutical projects. These theories offer insufficient explanations …

Dropping Slugs In The Celestial Jukebox: Congressional Enabling Of Digital Music Piracy Short-Changes Copyright Holders

San Diego Law Review

In response to the myriad new methods of copying that are emerging from the ongoing digital revolution, Congress has enacted several amendments to copyright law.' These statutes have sought to protect copyright holders in the digital age without chilling the development of new technologies or interfering with consumer access to copyrighted works. Specifically, the Audio Home Recording Act of 1992 ("AHRA") recognized the tremendous potential for piracy created by consumer access to digital audio recording devices. The purpose of the AHRA is not only to prevent infringing acts, but also to compensate copyright holders for the inevitable instances of illicit …

The Sanctity Of Association: The Corporation And Individualism In American Law, Liam Seamus O'Melinn

San Diego Law Review

American society and law display a deep reverence for the group, as long as it assumes corporate or quasi-corporate form. This reverence is not fleeting; rather, it has deep historical roots. In fact, it was there before the republic came into being and it played a profound role in the founding of the nation. Moreover, these roots are not only traditional, but philosophical and religious as well. This Article explores those roots, with three goals in mind. First, to correct the mistaken notion that American law has historically demonstrated a commitment to the individual at the expense of the group, …

State Constitutionalism And The Domain Of Normative Theory, Daniel B. Rodriguez

San Diego Law Review

Positive constitutionalism means not only describing but also theorizing about elemental questions of constitutional structure and theory. Key positive questions include: Why do certain constitutional forms emerge and survive? What is the role of political choice, by legislators and by citizen voters, in constructing constitutions and constitutional discourse? What is the relationship between constitutionalism and constitutional law? By normative constitutional theory, I mean the critical evaluation of constitutions. The key normative question is: What ought a particular constitution say? Those of us interested in both positive constitutionalism and normative constitutional theory would like to think that we are bringing together …

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

All Faculty Scholarship

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

As we approach the new century and the new millennium, those of us who are legal professionals in liberal capitalist democracies need to drastically improve our practices of law if we are to bring those practices in line with our professed ideals. The commodification and marketing of legal services, for example, combined with a nearly blind commitment to overly combative advocacy, puts legal assistance beyond the means of large segments of the public, severely undercutting our commitment to equality before the law. A different and perhaps harder question, however, is whether the ideals against which we judge our practices are …

Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon

St. Mary's Law Journal

Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of …

Creative Sanctions For Discovery Abuse In Texas., Travis C. Headley

St. Mary's Law Journal

Creative sanctions are necessary to deter litigants from abusing the discovery process. Under both the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure, creative sanctions are allowed and within a judge’s discretion. Federal Rule of Civil Procedure 37 and Texas Rule of Civil Procedure 215 provide judges a non-exhaustive list of available sanctions to deter abusive discovery practices. Nonetheless, discovery abuse has continued to escalate, and limited precedence exists in the field despite the increased use of sanctions. An unprecedented creative sanction was imposed by Judge Brotman of the District Court for the Virgin Islands. On …

A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle

St. Mary's Law Journal

In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary …