Jurisprudence Commons^™

Intention Is All There Is: A Critical Analysis Of Aharon Barak's Purposive Interpretation In Law, Stanley Fish

Cardozo Law Review

No abstract provided.

Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson

Michigan Law Review

Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory …

Climate Change In The Supreme Court, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider's perspective on the choices that went into bringing and …

Establishment And Judicial Administrability, Anthony J. Bellia Jr.

Journal Articles

Reviewing Kent Greenawalt, Religion and the Constitution: Volume 2: Establishment and Fairness (Princeton Univ. Press 2008).

Jung V. Skadden, Arps, Slate, Meagher & Flom, Zachary Kerner

NYLS Law Review

No abstract provided.

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

United States V. Grier, Lyndsay V. Ruotolo

NYLS Law Review

No abstract provided.

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Global Health Jurisprudence: A Time Of Reckoning, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee

St. Mary's Law Journal

On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …

On The Trail To Increased Client Protection: Attorney Contingent Fee Contract Termination In Light Of Hoover V. Walton Recent Development., Tiffanie S. Clausewitz

St. Mary's Law Journal

Abstract Forthcoming.

The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake

St. Mary's Law Journal

Recently, the Texas Legislature passed Senate Bill 378 effectively terminating a person’s “duty to retreat” when confronted with a criminal attack of either great bodily injury or death. Complicated issues of innocence and guilt arise when one employs deadly force as a means of self-defense. Furthermore, tragic mistakes occur when people preemptively resort to deadly force before the realization of such a threat. Societal questions still exist concerning the possibility that self-defense will turn into self-justice. Critics argue the law encourages a vigilante society, substituting law enforcement help with self-justice. Conversely, supporters believe the bill serves as a deterrent from …

Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast

St. Mary's Law Journal

Ethical rules generally set forth commonly held ethics principles in broad terms which usually generate little debate. What has generated a great deal of debate is whether it is ethical for an attorney to record a conversation. The American Bar Association’s (ABA) view of the issue has shifted over the years. Originally, the practice was held to be unethical except for certain well-defined exceptions involving government attorneys. The 2001 ABA opinion officially withdrew the original opinion allowing attorneys to secretly record a conversation with a non-client where it is not illegal. States’ opinions as to whether conversation recording is ethical …

Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

Plea bargaining is such an essential component of the administration of justice that disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. Even though 95% of felony criminal cases nationwide are resolved through plea bargaining, there are no specific ethical rules governing the practice. The exhortation in article 2.01 of the Texas Code of Criminal Procedure states it is the primary duty of all prosecuting attorneys to see that justice is done, rather than merely convicting. In order to determine the ethical boundaries of plea bargaining, …

Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte

St. Mary's Law Journal

In general, attorneys must not reveal confidential information relating to the representation of their clients. Attorneys must make reasonable efforts to ensure the attorneys they supervise, as well as their nonlawyer employees, maintain client confidences. In modern days, technology virtually guarantees attorneys and clients will communicate electronically. While most attorneys would not knowingly disclose client confidences, there is a growing problem of unintended disclosure through electronic means. On a practical level, maintaining confidence is of utmost importance to both attorneys and clients. Attorneys may believe they are using good faith and competent, reasonable actions to protect their clients’ information from …

Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv

St. Mary's Law Journal

The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …

Fulfilling Your Professional Responsibilities: Representing A Deaf Client In Texas Recent Development., Matthew S. Compton

St. Mary's Law Journal

Abstract Forthcoming.

Chapters In The History Of The Supreme Court Of Texas: Reconstruction And Redemption (1866-1882)., Hans W. Baade

St. Mary's Law Journal

Abstract Forthcoming.

It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland

St. Mary's Law Journal

In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …

American Legal Ethics In An Age Of Anxiety., Michael Ariens

St. Mary's Law Journal

The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …

The Metes And Bounds Of Governmental Immunity And Political Subdivisions: Limiting Tort Liability For Municipal Utility Districts In Texas Recent Development., Dawn E. Norman

St. Mary's Law Journal

Abstract Forthcoming.

Judicial Policy - Making And The Peculiar Function Of Law, Richard Kay

Faculty Articles and Papers

While the nature of legal systems is a perpetually contested question, it is fairly uncontroversial that each must contain certain essential characteristics. First, each must suppose some picture of the appropriate way for human beings subject to it to live together in society. Second, to secure that proper arrangement, each must employ, to a greater or lesser degree, the device of general rules of conduct. Finally, in all but the simplest systems, the effectiveness of those rules must be guaranteed by some process of adjudication. The relationships among these three factors - social values, legal rules and judging - comprise …

The Politics Of The Rule Of Law, Joseph Raz

Faculty Scholarship

This article is about the political significance and the moral justification of the rule of law in one country, i.e., Britain. Its conclusions apply to other countries in proportion to the degree to which their political culture is similar to the British one.

Reason, Reasons And Normativity, Joseph Raz

Faculty Scholarship

All normative phenomena are normative in as much as, and because, they provide reasons or are partly constituted by reasons. This makes the concept of a reason key to an understanding of normativity. Believing that, I will here present some thoughts about the connection between reasons and Reason and between Reason and normativity.

An Interdisciplinary Approach To Family Law Jurisprudence: Application Of An Ecological And Therapeutic Perspective, Barbara A. Babb

All Faculty Scholarship

No abstract provided.

Faith In The Rule Of Law, Marc O. Degirolami

Faculty Publications

This is an essay on Brian Z. Tamanaha's Law as a Means to an End: Threat to the Rule of Law (2006).

For all but the most unflinching consequentialist, "instrumentalism" tends to draw mixed reviews. So it does from Brian Tamanaha. His book, Law as a Means to an End: Threat to the Rule of Law, documents with measured diffidence the ascendancy and current reign of "legal instrumentalism," so entrenched an understanding of law that it is "taken for granted in the United States, almost a part of the air we breathe." Professor Tamanaha shows that in our legal theorizing, …

Baby, Look Inside Your Mirror: The Legal Profession's Willful And Sanist Blindness To Lawyers With Mental Disabilities, Michael L. Perlin

Articles & Chapters

The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

University of Richmond Law Review

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.

Expedited Partner Therapies For Sexually Transmitted Diseases: Legal And Policy Approaches, Lindsay Wiley, James G. Hodge Jr., Erin Fuse Brown, Dhrubajyoti Bhattacharya

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

Articles

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …