Jurisprudence Commons^™

Prescribing Orthodoxy, Kelly Sarabyn

Cardozo Public Law, Policy & Ethics Journal

The article examines the constitutional implications of government actions that compel ideological conformity, particularly focusing on the First Amendment's prohibition against coerced ideological speech. It argues that while the Supreme Court has established that the government cannot force citizens to adopt specific ideological beliefs, the legal framework remains unclear and inconsistent. The analysis emphasizes the need for a structured approach to determine when such coercion crosses constitutional boundaries, especially in cases involving captive audiences and government speech. The author proposes that the prohibition on prescribing orthodoxy should explicitly ban the use of nonrational methods to influence citizens' beliefs, ensuring a …

Bargains Bicoastal: New Light On Contract Theory, Geoffrey P. Miller

Cardozo Law Review

Recent research has shown that large companies select New York law and New York courts to govern disputes under commercial contracts. Because these parties make choice-of-law and forum selection decisions before conflicts arise, there is reason to believe that their preference for New York reflects an effort to select efficient terms. This Article compares New York's contract law with that of its most natural competitor, California. It turns out that New York strictly enforces bargains and displays little tolerance for efforts to rewrite deals ex post. California, in contrast, more willingly reforms contracts for reasons of fairness, equity, morality, or …

The Pitfalls Of Dealing With Witnesses In Public Corruption Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

In The Park: A Jurisprudential Primer, Allan C. Hutchinson

Osgoode Hall Law Journal

No abstract provided.

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

Cornell Law Faculty Publications

No abstract provided.

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Cardozo Law Review

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

The Death Penalty: Developments In Caribbean Jurisprudence, Anthony Gifford

International Journal of Legal Information

The presentation analyzes death penalty developments in the Caribbean jurisprudence. The discussion of a series of court decisions leads to the opinion that it is not right for the State to “end the life of a human being.” It questions death penalty as punishment for crime versus “the capacity of individuals for redemption and rehabilitation."

Understanding The Recurrent Crisis In Legal Romanticism: Two Criteria For Coherent Doubt, Chris Sagers

Law Faculty Articles and Essays

Broadly skeptical or relativistic criticisms of law and legal discourse, of the kind prevalent in the last generation in American legal scholarship, pose an inherent logic problem: they tend to impugn normativity itself just as much as they do their intended target. What seems amiss is that the act of critique is itself normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is hard to see how the normativity implied in the very act of critique—indeed, in the very act of having purposes at all—is not at odds with the criticism itself.

As an …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Justice As Play, Jack L. Sammons

Mercer Law Review

I am interested here in using Johannes Huizinga's work on play, Homo Ludens, to explore a strange, yet civilizing, phenomenon. Why do we take those social disputes in our ordinary lives that often seem most serious and therefore most divisive, turn them over to playful participants in a legal game, and then choose, more or less, to call the outcome of this game justice and to trust it as such even to the point of preferring it to the political? Why, that is, do we think that it is justice that arises from this play?

This inquiry is not …

Lines Of Vision, Lines Of Flight: The Belly Of An Architect, Anne Bottomley

Cardozo Law Review

No abstract provided.

Trimming The Fat: A Study Of Mandatory Nutritional Disclosure Laws And Excessive Judicial Deference, Charles R. Yates, Iii

Washington and Lee Law Review

No abstract provided.

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Washington and Lee Law Review

Stare decisis has been called many things, among them "~a principle of policy, " "a series ofprudential and pragmatic considerations, " and simply "the preferred course. " Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts. This Article examines stare decisis as applied by the U.S. Supreme Cour~, our nation 's highest doctrinal authority. A review of the Court 'sjurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely …

Against The Laws Of Time: The Cinematic Thought Of Theo Angelopoulos, Thanos Zartaloudis

Cardozo Law Review

No abstract provided.

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Michigan Law Review

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

The Effect Of Legal Theories On Judicial Decisions, Anthony D'Amato

Faculty Working Papers

I draw a distinction in the beginning of this essay between judicial decision-making and a judge's decision-making. To persuade a judge, we should try to discover what her theories are. Across a range of theories, I offered well-known case examples typically cited as examples of each theory. Then I showed that the exact same theory used to justify or explain those case results could be used to justify or explain the opposite result in each of those cases.

The Injustice Of Dynamic Statutory Interpretation, Anthony D'Amato

Faculty Working Papers

How can we possibly plan our lives on the basis of the law of tomorrow when we can't predict what that law will be? Are courts that are attracted to dynamic statutory interpretation teaching us that we can no longer know and rely on the rule of law in our daily lives because months or years later they can use policy considerations to make new law and apply that law retroactively to us? Doesn't dynamic statutory interpretation amount to unconstitutional ex post facto legislation? Hasn't justice become impossible to get from courts if judges insist on upsetting both sides' expectations …

A Path Not Taken: Hans Kelsen's Pure Theory Of Law In The Land Of Legal Realists, D. A. Jeremy Telman

Law Faculty Publications

This Essay is a contribution to a volume on the influence of Hans Kelsen’s legal theory in over a dozen countries. The Essay offers four explanations for the failure of Kelsen’s pure theory of law to take hold in the United States. Part I covers the argument that Kelsen’s approach failed in the United States because it is inferior to H. L. A. Hart’s brand of legal positivism. Part II discusses the historical context in which Kelsen taught and published in the United States and explores both philosophical and sociological reasons why the legal academy in the United States rejected …

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

Law Faculty Publications

No abstract provided.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Property And Transitional Justice, Bernadette Atuahene

All Faculty Scholarship

Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Faculty Scholarship

Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment.

In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value …

Extraordinary Justice, David C. Gray

Faculty Scholarship

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

Faculty Scholarship

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

Marbury V. Madison And The Foundation Of Law, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Foreign Fishing Piracy Vs. Somalia Piracy – Does Wrong Equal Wrong?, Leticia M. Diaz, Barry Hart Dubner

Barry Law Review

This article is a sequel to the authors' last article, On the Evolution of the Law of International Sea Piracy, published in December 2009. That article attempted to illustrate the enormous problem of sea piracy off of Somalia. This article was inspired by the authors' attendance and participation at a two-day conference sponsored by the Harvard Kennedy School’s Belfer Center for Science and International Affairs. After the conference the authors were inspired to write this article, setting forth a view of why Somali piracy started and some of the problems created by these illegal acts.

Communication Indecency: Why The Communications Decency Act, And The Judicial Interpretation Of It, Has Led To A Lawless Internet In The Area Of Defamation, Colby Ferris

Barry Law Review

First, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making.

Wittgenstein Tests Mr. Justice Holmes: On Holmes's Proposal To Separate Legal Concepts From Moral Concepts, Thomas D. Eisele

Faculty Articles and Other Publications

No abstract provided.