Jurisprudence Commons^™

"Is That English You're Speaking?" Why Intention Free Interpretation Is An Impossibility, Larry Alexander, Saikrishna Prakash

San Diego Law Review

"Textualism" is a very general and abstract term that represents a variety of views about the interpretation of legal texts. One strand of textualism is conceptual and descriptive; this strand makes claims about what texts actually mean. Another strand of textualism is normative; this strand makes claims about how judges ought to proceed when they interpret particular kinds of legal texts, such as constitutions and statutes. In the first part of this paper, we are particularly concerned with an especially strong form of conceptual textualism - the position that texts can be interpreted without any reference, express or implied, to …

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

Working Paper Series

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

Court Review: Volume 41, Issue 2 - The Tyranny Of The “Or” Is The Threat To Judicial Independence, Not Problem-Solving Courts, Kevin S. Burke

Court Review: Journal of the American Judges Association

If one values freedom, tolerance, and civil liberties, we live at a time when our planet is a dangerous place. Even if one accepts the notion that mankind is composed of decent and good human beings, not all societies place a premium on the values of freedom, tolerance, and civil liberties for all. While there are many factors that promote justice, judicial independence is the cornerstone to freedom and liberty. Now more than at other times in history, a strong, effective, and independent judiciary is imperative. Now more than ever, judges need to realize that maintaining an impartial independent judiciary …

Of Gift Horses And Great Expectations: Remands Without Vacatur In Administrative Law, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

Administrative law has been shaped over the years by fundamentally practical considerations. Displacement of agency decisions by courts was rare; yet, the omnipresent threat of substantial judicial intrusion surely affected agency decisions. While the Administrative Procedure Act, adopted nearly 60 years ago, provides a comprehensive template for federal agency decisionmaking, what is striking about the APA is how much is left out and how much is left to the discretion of both agencies in implementing regulatory decisions and to the courts in superintending agency action. Given this history, it is hardly surprising that many doctrinal techniques represent the pragmatic effort …

Foreign Policy And Separation Of Powers Jurisprudence: Executive Orders Regarding Export Administration Act Extension In Times Of Lapse As A Political Question, Themes Karalis

Cardozo Journal of International and Comparative Law

The article examines the interplay between the Export Administration Act (EAA) and the Freedom of Information Act (FOIA), particularly focusing on whether the EAA qualifies as an Exemption 3 statute under FOIA. It explores how courts have upheld the EAA's exemption status even during periods of lapse, emphasizing the executive branch's authority to maintain export controls through executive orders. The analysis highlights the deference given to the executive in foreign policy matters and the challenges posed by the EAA's temporary nature, suggesting that Congress should consider amending the EAA for automatic renewal to avoid recurring issues.

Court Review: Volume 41, Issue 2 - Resource Materials On Judicial Independence, Roy Schotland

Court Review: Journal of the American Judges Association

In addition to the articles found in this issue of Court Review, which present the considered views of the authors on various subjects, we also seek to stimulate the thinking of the reader regarding judicial independence. For those attending the annual conference of the American Judges Association this year, this will involve review of the materials in this issue and interchange with authors of the articles and a number of others who have given substantial thought to the topic—as well as interchange with other judges in attendance.

For those whose involvement with the National Forum on Judicial Independence will come …

Court Review: Volume 41, Issue 2 - Cover

Court Review: Journal of the American Judges Association

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Court Review: Volume 41, Issue 2 - Complete Issue

Court Review: Journal of the American Judges Association

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Court Review: Volume 41, Issue 2 - Table Of Contents

Court Review: Journal of the American Judges Association

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Court Review: Volume 41, Issue 2 - A Judiciary That Is As Good As Its Promise: The Best Strategy For Preserving Judicial Independence, Kevin S. Burke

Court Review: Journal of the American Judges Association

Nearly 100 years ago, Roscoe Pound gave his famous speech entitled “The Causes of Popular Dissatisfaction with the Administration of Justice.” Pound spoke of three things that contributed to the dissatisfaction he perceived during his time: first, a belief by the people that the administration of justice is easy; second, the historical tension between the branches of government; and, finally, what he described as the sporting theory of justice. While Pound’s focus was on why the public was dissatisfied, it is axiomatic that the causes of the popular dissatisfaction with the administration of justice are the fuel for present threats …

Court Review: Volume 41, Issue 2 - Speak To Values: How To Promote The Courts And Blunt Attacks On Judiciary, John Russonello

Court Review: Journal of the American Judges Association

This article will outline a number of ideas for communications that could help to promote stronger public support for the courts when they do come under attack. The ideas take into consideration the desires, motivations, and values of the American public that have been learned from years of conducting national and statewide public opinion research on the judicial system for clients such as the ACLU, Justice at Stake Project, the Youth Law Center, and the Open Society Institute, among others. Here are some of the observations on American public opinion that lead to suggestions for court advocates.

Court Review: Volume 41, Issue 2 - The Challenge Of Funding State Courts In Tough Fiscal Times, Michael L. Buenger

Court Review: Journal of the American Judges Association

It has been described as the worst state fiscal crisis since the end of World War II, with officials from across the country likening it to a “perfect storm,” “the Incredible Hulk of budget deficits,” and a “problem of historic proportions.” Beginning in 2001, almost every state experienced a deep fiscal crisis that placed funding of critical services in jeopardy and rendered many previously hallowed programs subject to draconian cuts, if not outright elimination. The fiscal crisis was particularly traumatic for court systems receiving all or a significant portion of their funding directly from state governments.

In response to the …

Court Review: Volume 41, Issue 2 - Some Thoughts On The Problems Of Judicial Elections, Jeffrey Rosinek

Court Review: Journal of the American Judges Association

Election season is within sight again, and with it come the obligatory attacks on the judiciary. Some call it simply campaigning or electioneering, while others believe it is more serious and a form of “judge bashing.” Whatever name the problems are given, the entire election process may have a marked effect on the independence of our judiciary, as well as the ethics of judges and judicial candidates. And in the end, because these problems affect the public’s faith in the judicial system, they must be addressed.

Court Review: Volume 41, Issue 2 - Judicial Independence In The Municipal Court: Preliminary Observations From Missouri, Lawrence G. Myers

Court Review: Journal of the American Judges Association

Preliminary results from a recent survey of the municipal courts in Missouri show significant structural and attitudinal barriers to judicial independence. The results are preliminary in light of the deadline for this issue: only a relatively short time was available to analyze the responses before submitting this article. Even the early returns suggest real problems, however.

Court Review: Volume 41, Issue 2 - Recent Civil Decisions Of The U.S. Supreme Court: The 2003-2004 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

The civil cases decided by the United States Supreme Court during its last term were headlined by its decisions reasserting the rule of law in the context of detainees in the war on terrorism. In addition, the Court handed down a number of decisions on civil rights, the First Amendment, federalism, presidential power, and civil statutory interpretation. We review those cases here.

Court Review: Volume 41, Issue 2 - Editor's Note

Court Review: Journal of the American Judges Association

This issue is focused on judicial independence. On the next page, Mike McAdam, the president of the American Judges Association, explains how it developed that a National Forum on Judicial Independence would be a part of this year’s AJA annual conference. We’re pleased to present this special issue of Court Review, which is intended to stimulate discussion at the conference and to bring the members who couldn’t attend into the process.

Court Review: Volume 41, Issue 2 - President’S Column, Michael R. Mcadam

Court Review: Journal of the American Judges Association

This special edition of Court Review will be devoted to the critical issue of judicial independence. The articles contained here were solicited as part of the National Forum on Judicial Independence, which will take place at the AJA’s 44th annual educational conference in San Francisco. For those attending the conference, these papers will be an integral element of the Forum and will be discussed and debated in San Francisco by the authors and conference attendees. For those who can’t attend the Forum, these articles present excellent analysis by respected judicial professionals about various aspects of the concept of judicial independence.

Court Review: Volume 41, Issue 2 - Letters

Court Review: Journal of the American Judges Association

A Judiciary as Good as Its Promise

The Unchanging Role of the Judge

Court Review: Volume 41, Issue 2 - The Resource Page

Court Review: Journal of the American Judges Association

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A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan

All Faculty Scholarship

Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated …

Fletcher's Rethinking: A Memoir, Kyron J. Huigens

Articles

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Logic, Language And Legal Science: Are We Lagging Behind?, James S. Mcquade

ExpressO

The central theme of this article is that modern notions of logic, deriving from computer logics and also from the language and logic movement in philosophy, provide a sound basis for legal science and hence for legal writing, law practice and legal education. Scepticism about legal formalism largely derives from the fact that the term logic is still taken to mean the syllogistic logic of Aristotle. Modern notions of logic, generally referred to as formalism or formal studies, view knowledge in general and science in particular in terms of game theory, applying word, number letter and iconic games to data …

Law School Enters The Matrix: Teaching Critical Legal Studies, Jerry L. Anderson

Journal of Legal Education

No abstract provided.

In The Tout Court Of Shakespeare: Interdisciplinary Pedagogy In Law, Desmond Manderson

Journal of Legal Education

No abstract provided.

A Goode Judge Is Hard To Find: An Essay On Legal Realism And Law School Casebooks, Thomas Hayes

Journal of Legal Education

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The Embarassing Rule Against Perpetuities, Peter A. Appel

Journal of Legal Education

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Re-Balancing State And Federal Power: Toward A Political Principle Of Subsidiarity In The United States, Jared Bayer

American University Law Review

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Foreword: Loving Lawrence, Pamela S. Karlan

Michigan Law Review

Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Court Review: Volume 41, Issue 1 - Recent Criminal Decisions Of The United States Supreme Court: The 2003-2004 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

The United States Supreme Court this term reasserted the rule of law in the context of the detainees in the war on terrorism. At the same time, this was a term of unanswered questions. The Court handed down several decisions that had far-reaching implications that were not addressed by the Court’s opinions. Two cases with the greatest practical input on the day-to-day administration of justice were criminal cases: Crawford v. Washington, concerning the admissibility of hearsay at criminal trials, and Blakely v. Washington, regarding the proper role of judges and juries in determining aggravating factors that justify harsher sentences. Each …