Jurisprudence Commons^™

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

Recovering The Social Value Of Jurisdictional Redundancy, Alexandra Lahav

Faculty Articles and Papers

This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for …

Rethinking Indivisibility: Towards A Theory Of Supporting Relations Between Human Rights, James W. Nickel

Articles

No abstract provided.

A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham

St. Mary's Law Journal

The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …

The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan

St. Mary's Law Journal

The United States Court of Appeals for the Fifth Circuit first addressed the sham affidavit theory in Kennett-Murray Corp. v. Bone. This is the doctrine regarding assertions made by affidavit in order to prove summary judgment which are contrary to prior statements given, usually during a deposition. More recently, the Fifth Circuit has used the theory to strike affidavits where it found a sufficient inconsistency existed. This Court has also applied the sham affidavit theory to any prior sworn testimony, not just deposition testimony. The adoption of this theory overturned the precedent which stated a factual issue existed where a …

The Texas School Finance Litigation Saga: Great Progress, Then Near Death By A Thousand Cuts., Albert H. Kauffman

St. Mary's Law Journal

The Texas Legislature’s system for financing Texas schools is significantly more equitable after Edgewood v. Kirby. Edgewood I and Edgewood II effectively forced the legislature to improve the finance system. However, the rulings in the first two Edgewood cases have been whittled away by the last four Edgewood decisions.. As a result, courts now approach fundamental issues, legislative power, and the relationship between them differently. The Edgewood v. Kirby legacy still improves the equity and adequacy of Texas’s public education finance system. This legacy is expanded upon with observations regarding long term impacts of the Texas school finance litigation saga.

The Concept And The Rule Of Law, Jeremy Waldron

Georgia Law Review

This Essay explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. First, the Essay argues in favor of a more demanding understanding of what law it (informed by the ideal of the Rule of Law); in other …

The Origin Of Article I, Section 7 Of The Washington State Constitution, Associate Chief Justice Charles W. Johnson, Scott P. Beetham

Seattle University Law Review

This Article will demonstrate that history does in fact provide guidance to the intention of the framers when they rejected the language of the Fourth Amendment and adopted the unique language of article I, section 7. Contrary to the Ringer court's assertion, federal and state case law, legal academic articles, and newspaper articles from the late nineteenth century and early twentieth century provide a wealth of information from which the rationale behind the framers' decision to choose the specific language in article I, section 7 can be hypothesized.

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

Beauty Of Law, Thomas J. Moyer

University of Baltimore Law Review

No abstract provided.

The "Write" Way: A Judicial Clerk's Guide To Writing For The Court, Jennifer Sheppard

University of Baltimore Law Review

No abstract provided.

From The Periphery To The Center? The Evolving Wto Jurisprudence On Transparency And Good Governance, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision …

In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione

St. Mary's Law Journal

Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The …

My How You've Grown: The St. Mary's Law Journal Turns Forty Remark., Martin D. Beirne

St. Mary's Law Journal

Abstract Forthcoming.

John Paul Ii, The Structures Of Sin And The Limits Of The Law., John M. Breen

Faculty Publications & Other Works

No abstract provided.

Modesty And Moralism: Justice, Prudence, And Abortion: A Reply To Skeel & Stuntz, John M. Breen

Faculty Publications & Other Works

No abstract provided.

"Purely The Creature Of The Inventive Genius Of The Court": State Ex Rel. Whiteside And The Creation And Evolution Of The Montana Supreme Court's Unique And Controversial Writ Of Supervisory Control, Larry Howell

Montana Law Review

Montana's Writ of Supervisory Control

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Deystone

Publications

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as evidenced in …

Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii

Scholarly Works

This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Interpretation, Francis J. Mootz Iii

Scholarly Works

In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.

Judicial Decisionmaking, Paul V. Niemeyer

Georgia Law Review

Judge Niemeyer observes that judicial decisionmaking is a layered mental process in which numerous legitimate factors contribute to an arrangement of priorities. The priority of factors, which is based on the psychical makeup of each judge, determines the popular characterization of judges as liberal, conservative, pragmatic, thoughtful, or balanced. Nonetheless, decision making is not unconstrained,as it is guided by the good faith of each judge to continue the rule of law with well-reasoned and just opinions. If accomplished, legal disputes are accordingly healed, ultimately producing the desired harmony in the community.

Foreword: Judiciary Special Issue, Glenn T. Harrell Jr.

University of Baltimore Law Review

No abstract provided.

A Collection Of Poetry, Gregory J. Hobbs Jr.

University of Baltimore Law Review

No abstract provided.

The Human Dignity Of Clients, Katherine R. Kruse

Scholarly Works

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

In The Spirit Of Ubuntu: Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John Bessler

All Faculty Scholarship

This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may …

Indirect Infringement From A Tort Law Perspective, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Rhetorical Neutrality: Colorblindness, Frederick Douglass, And Inverted Critical Race Theory, Cedric Merlin Powell

Cleveland State Law Review

Rhetorical Neutrality refers to the middle ground approach adopted by the Supreme Court in its race jurisprudence. This Article examines rhetorical neutrality as evinced in the narratives espoused in the opinions of Justices O'Connor and Thomas. In Grutter, both Justices employ neutral approaches, rooted in colorblindness. However, the underlying rhetoric, or how their reasoning is expressed in their respective opinions, is strikingly distinct. Neither Justice advances a remedial approach; both Justices start with the premise that race is inherently suspect, but their approaches diverge because they view colorblind neutrality in fundamentally distinct ways.

Court Review: Volume 45, Issue 1/2 – Cover

Court Review: Journal of the American Judges Association

No abstract provided.

Court Review: Volume 45, Issue 1/2 – Complete Issue

Court Review: Journal of the American Judges Association

Table of Contents:
The Case of Standing Bear: Establishing Personhood under the Law by Joe Starita

Sovereign Comity: Factors Recognizing Tribal Court Criminal Convictions in State and Federal Courts by Matthew L.M. Fletcher

Wisconsin’s Experience in Allocating Jurisdiction between State and Tribal Courts by Beth Ermatinger Hanan and William H. Levit, Jr.

Beyond Minimum Standards: Federal Requirements and State Interpretations of the Indian Child Welfare Act by Kathryn E. Fort

American Indian Law Research for State Courts by Nancy Carol Carter

Assumptions Regarding Indians and Judicial Humility: Thoughts from a Property-Law Lens by Ezra Rosser

From Conflict to Cooperation: State …

Enemy Combatants And The Jurisdictional Fact Doctrine, David L. Franklin

Cardozo Law Review

No abstract provided.