Jurisprudence Commons^™

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

When Should Judges Appoint Experts?: A Law And Economics Perspective, Jonathan T. Tomlin, David Cooper

ExpressO

The Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals placed federal judges in the role of “gatekeepers” empowered to evaluate the reliability of often complex expert testimony. Many judges, commentators, and legal scholars have argued that court-appointed experts can assist judges in appropriately carrying out their gatekeeping role. However, previous literature has not evaluated the role of court-appointed experts in a rigorous framework that considers the complex interaction of the incentives of expert witnesses, the impact of expert witnesses on the decision-making of the fact finder, and the knowledge of the judge. In this article, we provide such a …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Taking "Justice And Fairness" Seriously: Distributive Justice And The Takings Clause, Jeffrey M. Gaba

ExpressO

Since the 1960 case of Armstrong v. United States, the Supreme Court has repeatedly stated that “the” purpose of the Takings Clause is to prevent burdens falling on individual landowners that should in “justice and fairness” be born by society as a whole. The essay argues that this embodies a concept of distributional justice and further argues that the Court has failed to adequately consider the implications of such a conception as the basis of Takings analysis. The essay, after describing the origins of the Armstrong principle, discusses four implications: first, the rejection of a rights- based conception of the …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian

Working Paper Series

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

Liberalism And Religion, Steven H. Shiffrin

ExpressO

No abstract provided.

The Final Battle For Preemption: The Fda And Prescription Drug Labeling Product Liability Actions, Mary J. Davis

ExpressO

The Food and Drug Administration (FDA) has promulgated a new regulation which revises the format for prescription drug labeling, and, in the process, has taken the position that the regulation displaces, or preempts, state products liability laws that seek to assess liability on the manufacturer for a label’s warning adequacy. In the FDA’s 100 year history, it has not taken the position that federal prescription drug labeling regulations preempt common law tort claims until the last few years, beginning with Motus v. Pfizer in 2002. This position, radical to many and rational to others, places federal preemption of prescription drug …

Jumping On The Bandwagon: How Canadian Lawyers Can & Should Get Involved In The Emerging Trend To Implement Therapeutic Jurisprudence Practices In Canadian Courts, Brooke Bloom

ExpressO

No abstract provided.

Strict Liability And The Liberal Justice Theory Of Torts, Alan Calnan

ExpressO

Ask a group of tort scholars to explain the relationship between fault and strict liability and the responses are likely to be sharply split. An economist might reply that strict liability—assigned on the basis of efficiency—should be the rule and fault, if it is to apply at all, but a reluctant and occasional exception. A moralist, however, would likely give the opposite opinion—that fault, defined as deontological culpability, should be the rule and strict liability the exception.

Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that government …

Marriage And The Elephant: The Liberal Democratic State’S Regulation Of Intimate Relationships Between Adults , Maxine Eichner

ExpressO

This essay considers the current debate in legal theory over the stance that the state should adopt toward intimate relationships between adults. Should the state, as some scholars argue, privilege marriage because of the benefits it provides to society? Or should it, as others argue, distance itself from relationships between adults on the ground that adults should be left to order their own affairs? The essay argues that scholars involved in this debate have reached such diametrically different conclusions from one another because each side has focused on a particular, narrow range of goods at issue in these relationships. Relationships …

Why Justice Scalia Should Be A Constitutional Comparativst . . . Sometimes, David C. Gray

ExpressO

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This essay begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia’s writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the essay does not propose a …

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

ExpressO

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia’s “textualist” philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven’s “Eroica” symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, …

Justice Thomas' Kelo Dissent, Or, "History As A Grab Bag Of Principles", David L. Breau

ExpressO

In Kelo v. City of New London, the Supreme Court held 5-4 that creating jobs and increasing tax revenues satisfy the Fifth Amendment’s requirement that property be "taken for public use." Justice Thomas joined the dissenters, but authored a separate opinion arguing that the Public Use Clause was originally understood as a substantive limitation that allowed the government to take property only if the government owns, or the public actually uses, the taken property. This article demonstrates that much of the historical evidence that Justice Thomas provides in his dissent to support a narrow original understanding of public use in …

Thomas Aquinas And The Metaphysics Of Law, William S. Brewbaker

ExpressO

Despite modernity’s longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts– Thomas Aquinas’ still-widely-read Treatise on Law-- with a view toward tracing the influence of Thomas’ metaphysical presuppositions.

This article shows that Thomas’ account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’ hierarchical view of reality exposes tensions between Thomas’ “top-down” account of law and his sophisticated “bottom-up” observations. For example, Thomas grounds human law’s authority in its …

Precedent, Super-Precedent, Michael B. W. Sinclair

ExpressO

The idea of super-precedent was first posited by (then) Prof. Posner & Prof. Landis 30 years ago, but as a throw-away, and was not picked up in the jargon. In 2000 Judge Michael Luttig of the 4th Circuit used it –as “super stare decisis” –and this time it did gain a following. “Super-precedent” –and even “super-duper precedent” --had an airing at both the Alito and Roberts hearings before the Senate Judiciary Committee and soon generated a couple of academic articles. No doubt there will be more. This is my contribution to the debate.

How, if at all, are we to …

Concurring In Part & Concurring In The Confusion, Sonja R. West

Scholarly Works

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …

Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn

ExpressO

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went about resolving its differences …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff

ExpressO

Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …

Developing Development Theory: Law & Development Orthodoxies And The Northeast Asian Experience, John K.M. Ohnesorge

ExpressO

None of the orthodox theories about law and economic development produced in recent decades has been based on a study of the "miracle" economies of Northeast Asia, nor have any of these orthodoxies seriously been tested against the Northeast Asian experience of law and development. This article conducts such a test, finding that none of these orthodoxies fares well when its claims are tested against the Northeast Asian experience. Rather than using Northeast Asia's experience to produce yet another orthodoxy, however, this article instead proposes rethinking how we understand the task of legal technical assistance, a rethinking which is based …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Faculty Publications

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …

Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Dworkin In The Desert Of The Real, David G. Carlson

Articles

The article critically examines Ronald Dworkin's jurisprudence, particularly his theory of right answers, and defends it against critiques that his approach to law and language creates an unbridgeable gap between theory and practice. Dworkin's central argument is that law has an essence that judges must discover through reflective equilibrium, emphasizing the incommensurability between the judge's act and the symbolic order of law. While critics argue that this approach leads to nihilism, Dworkin counters by asserting that conventionalists are contradictory and that justice, as a decision, necessarily transgresses the domain of law.

Equality And The Dialectic Between Identity And Difference, Michel Rosenfeld

Articles

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which callfor a type …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Law, Literature, And Empathy: Between Withholding And Reserving Judgment, Amnon Reichman

Journal of Legal Education

No abstract provided.