Jurisprudence Commons^™

Teaching Susan Glaspell's A Jury Of Her Peers And Trifles, Marina Angel

Journal of Legal Education

No abstract provided.

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal …

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

Hegel's Theory Of Measure, David Gray Carlson

Cardozo Law Review

No abstract provided.

State Doctrines Of Substantial Compliance: A Call For Erisa Preemption And Uniform Federal Common Law Doctrine, Meridith H. Bogart

Cardozo Law Review

No abstract provided.

United States V. Bean: Shoveling After The Elephant?, Pannal A. Sanders

ExpressO

Thomas Bean’s felony conviction in Mexico implicated provisions of federal law that preclude certain persons, including specified felons, from owning or trading in firearms and ammunition which have been transported in interstate commerce. 18 USC Sec. 922. Affected persons can seek relief from the federal firearms disability by invoking procedures established in 18 USC Sec. 925(c) under the Dept of Treasury, Director of Alcohol, Tobacco and Firearms (“ATF”). Beginning in 1992, Congress has enacted provisions annually in the ATF’s appropriations laws that ban it from investigating or acting upon Sec. 925(c) applications from individuals. Section 925(c) contains provisions for judicial …

Racism As "The Nation's Crucial Sin": Theology And Derrick Bell , George H. Taylor

ExpressO

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell’s thesis of racism’s permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr’s paradox that social action is both necessary and meaningful …

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

Exonerations Change Judicial Views On Ineffective Assistance Of Counsel, Adele Bernhard

Articles & Chapters

Law evolves more slowly than pop culture or public attitude. Because most exonerations have not resulted in written legal opinions, their impact is slowly seeping into case law. However, courts are influenced by the same news that sways the rest of us. Even without explicitly referring to innocence or wrongful convictions, modern trial courts are undoubtedly more likely to admit expert testimony on the question of eyewitness identification because they are painfully aware of just how easily such witnesses - no matter how honest or passionate - can be wrong. They are certainly more inclined to view confessions suspiciously, especially …

No-Citation Rules Under Siege: A Battlefield Report And Analysis, Stephen R. Barnett

The Journal of Appellate Practice and Process

No abstract provided.

Judicial Independence And The Ambiguity Of Article Iii Protections, Tracey E. George

Vanderbilt Law School Faculty Publications

Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other …

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal …

Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes

Articles

No abstract provided.

Dignity And Desert In Punishment Theory, Kyron J. Huigens

Articles

No abstract provided.

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

The "No Property" Problem: Understanding Poverty By Understanding Wealth, Jane Baron

ExpressO

No abstract provided.

In The Stream Of The Commerce Clause: Revisiting Asahi In The Wake Of Lopez And Morrison, Andrew Kurvers Spalding

Nevada Law Journal

No abstract provided.

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

The Trajectory Of (Corporate Law) Scholarship, Brian R. Cheffins

ExpressO

While considerable attention is devoted to legal scholarship, little has been written on the process by which academic writing on law evolves. This paper departs from the existing pattern and examines five potential trajectories for legal scholarship. One is based on the idea that knowledge “accumulates” as part of “progress” towards a better understanding of the matters under study. The second is the concept of the “paradigm”, derived from work done on the history and sociology of science. The third focuses on the idea that academic endeavor concerning law yields useful ideas since market forces are at work. The fourth …

The Traumatic Dimension In Law, David Gray Carlson

Cardozo Law Review

No abstract provided.

Oblivion Of Crime As Crime Of Oblivion, Néstor A. Braunstein

Cardozo Law Review

No abstract provided.

The Appearance Of Right And The Essence Of Wrong: Metaphor And Metonymy In Law, Jeanne L. Schroeder, David Gray Carlson

Cardozo Law Review

No abstract provided.

Court Review: Volume 40, Issue 2 - President’S Column, Michael R. Mcadam

Court Review: Journal of the American Judges Association

As I wrote this, the National Center for State Courts had just completed the Eighth Court Technology Conference (CTC8) in Kansas City, Missouri. I was fortunate to be able to participate in CTC8 as your president and as a local host. My thoughts about CTC8 follow several lines of analysis, one about the role of technology in our courts, another about the impact of the National Center, and a third about the international nature of technology.

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …

Re-Treating Intellectual Property? The Wai 262 Proceeding And The Heuristics Of Intellectual Property Law, Graeme W. Austin

Cardozo Journal of International and Comparative Law

The article explores the WAI 262 proceeding, a legal challenge by Maori tribes alleging breaches of the Treaty of Waitangi by New Zealand's intellectual property laws. It argues that the Crown's obligations under the Treaty require a re-evaluation of intellectual property frameworks to respect Maori self-determination and cultural rights.

Court Review: Volume 40, Issue 2 - A Court And A Judiciary That Is As Good As Its Promise, Kevin S. Burke

Court Review: Journal of the American Judges Association

Today the dissatisfaction with the administration of justice is at a level that none of us should tolerate or accept, for it threatens our democracy as much or more than any terrorist. The nation’s dissatisfaction with the administration of justice is our issue of homeland security. In Pound’s speech, he spoke first of the popular assumption that the administration of justice is an easy task to which anyone is competent. The fact that I am the recipient of the Rehnquist Award proves to many that Pound was correct.

Court Review: Volume 40, Issue 2 - Complete Issue

Court Review: Journal of the American Judges Association

No abstract provided.