Jurisprudence Commons^™

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

Faculty Scholarship

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 article 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 article does not propose a …

The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman

Scholarly Articles

None available.

Court Review: Volume 44, Issue 1/2 – The Resource Page

Court Review: Journal of the American Judges Association

Websites

Scholarship And Teaching After 175 Years, Gordon A. Christenson

Faculty Articles and Other Publications

A quarter century ago, I presided at the 150th anniversary celebration of the founding of the Cincinnati Law School. Newly appointed Justice Sandra Day O'Connor came to dedicate the radically refurbished Taft Hall in the spring of 1983 and to say good things about our long history. This year we begin to celebrate the College's 175th anniversary. For its dedicatory issue, the editor-in-chief of the Law Review, Matthew Singer, invited me to write an introduction as well as to reflect on those twenty-five years and the challenges and opportunities I see ahead for us. Especially as an emeritus dean and …

The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt

Florida A & M University Law Review

This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with …

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Faculty Publications

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the …

The French Headscarf Law Before The European Court Of Human Rights, Kathryn Boustead

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Court Review: Volume 43, Issue 4 – Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 44, Issue 4 – Resource Page

Court Review: Journal of the American Judges Association

Websites of Interest
New books

Court Review: Volume 44, Issue 3 – In Memory Of Charles H. Whitebread, Steve Leben

Court Review: Journal of the American Judges Association

On September 16, 2008, the American Judges Association lost its best and most loyal friend. Law professor Charles H. Whitebread died that day of lung cancer at the age of 65.

Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey

Book Reviews

Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).

Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.

This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley …

Court Review: Volume 44, Issue 4 – Editor’S Note, Steve Leben

Court Review: Journal of the American Judges Association

One of the great things about editing the journal of the American Judges Association is that you can ask some of the leading experts in various legal fields to write articles for us, and because they will be speaking directly to judges, they usually agree. Our lead article in this issue is a great example.

Court Review: Volume 44, Issue 3 – Selected Criminal Law Cases In The Supreme Court’S 2007-2008 Term, And A Look Ahead, Charles D. Weisselberg

Court Review: Journal of the American Judges Association

The U.S. Supreme Court’s October 2007 Term had a substantial and notable criminal docket. There were very significant Second, Sixth, and Eighth Amendment decisions as well as important rulings relating to basic habeas corpus principles and federal statutes. This article provides a selected overview of the Term with a heavy emphasis on those cases that may have the greatest impact upon the states. The article also suggests some questions left open by the Court’s opinions and provides some preliminary indications of how several decisions are being received in state and federal courts. It concludes with a preview of some cases …

The Difference A Day Makes: How Courts Circumvent Federal Immigration Law At Sentencing, David S. Keenan

Seattle University Law Review

Efforts in criminal courts to avoid deportation as a result of convictions are prevalent throughout the United States. Although defendants in Washington have a statutory right to be advised of the potential immigration consequences of a guilty plea, there is no statutory or constitutional requirement that a judge take immigration consequences into consideration in imposing sentence. Nonetheless, as was the case in the assault on Micah Painter, judges can and do make what are effectively policy judgments when sentencing defendants, with an eye toward helping them avoid deportation.

Serving The "Apparently Under The Influence" Patron: The Ramifications Of Barrett V. Lucky Seven Saloon, Inc., Kathryn M. Knudsen

Seattle University Law Review

In Barrett v. Lucky Seven Saloon, Inc., the Washington Supreme Court erroneously expanded commercial vendor liability to third parties who are injured in automobile accidents by a patron who drives while impaired. This decision flies in the face of Washington vendor liability jurisprudence, which has shown a reluctance to hold vendors liable for negligently serving alcohol; prior to Barrett, courts would not do so unless the patron was a minor or was "obviously intoxicated." Nevertheless, Barrett rejected the common law "obviously intoxicated" rule in exchange for a new form of civil liability based on a criminal statute that …

Symposium: Feminism And Dualism In Intellectual Property, Dan L. Burk

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Transcript: Comments On Panel 1, Christine Farley

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Symposium: Walking The Tradition-Modernity Tightrope: Gender Contradictions In Textile Prodution And Intellectual Property Law In Ghana, Boatema Boateng

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Who Is Entitled To Survivor Benefits From Erisa Plans?, 40 J. Marshall L. Rev. 919 (2007), Albert Feuer

UIC Law Review

No abstract provided.

Labor Regulation, Union Avoidance And Organized Labor Relations Strategies On Tribal Lands: New Indian Gaming Strategies In The Wake Of San Manuel Band Of Indians V. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007), D. Michael Mcbride Iii, H. Leonard Court

UIC Law Review

No abstract provided.

Casenote: The Emerald Casino Fiasco, 40 J. Marshall L. Rev. 1305 (2007), Cory Aronovitz, Jon Topolewski

UIC Law Review

No abstract provided.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment, 41 J. Marshall L. Rev. 117 (2007), Keith H. Beyler

UIC Law Review

No abstract provided.

"Heads-I-Win, Tails-You-Lose": The Predicament Legitimate Small Entities Face Post Ebay And The Essential Role Of Willful Infringement In The Four-Factor Permanent Injunction Analysis, 41 J. Marshall L. Rev. 189 (2007), William R. Everding

UIC Law Review

No abstract provided.

International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger

St. Mary's Law Journal

The internationalization of legal practice presents numerous issues for lawyers, such as obtaining qualifications to practice law in foreign jurisdictions and developing the necessary knowledge. Different and possibly conflicting notions of standards of care and professional responsibility will arise. Globalization is widely regarded as the principal driving force in international economic and political relations. From the standpoint of business activity there are myriad ways to assess the impact of globalization. These include tracking rates of exchange, observing altered methods, or examining how attitudes and information has changed. Globalization has increased the demand for specialized accounting and legal services connected with …

Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Colin P. Marks

St. Mary's Law Journal

Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal …

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Scholarly Articles

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning …

Peer Review And Publication: Lessons For Lawyers, Susan Haack

Articles

No abstract provided.

An Rsvp To Professor Wexler's Warm Therapeutic Jurisprudence Invitation To The Criminal Defense Bar: Unable To Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn

Journal Articles

This Article responds to Professor David 13. Wexler's recent suggestion that adopting Therapeutic Jurisprudence ("V) principles to create a new type of "rehabilitative" defense lawyer could improve the criminal defense bar. Contrary to the empirical foundation of the therapeutic justice movement, many of his proposed changes seem unsubstantiated. Others, such as calls for creative plea bargaining, are already part of the practice of quality defense attorneys. The "rehabilitative," -Pi defense lawyer may be overly paternalistic, imposing his interpretation of the facts and his standards of appropriate behavior on the accused; such a lawyer also may not comport with express ethical …

The Constitution As Idea: Describing - Defining - Deciding In Kelo, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond

St. Mary's Law Journal

The last two decades have witnessed the creation of a perilous liability environment for lawyers and law firms. Most discussions of lawyer liability begin with “legal malpractice,” a term which typically describes professional negligence. In a malpractice case, the plaintiff must prove the lawyer owed them a duty, the duty was breached, and the breach was the proximate cause of actual damages. The lawyer’s duty flows from the attorney-client relationship. But, the attorney-client relationship is also a fiduciary one, and lawyers may be sued for breach of the fiduciary duty. While these two causes of action are usually alleged simultaneously, …