Jurisprudence Commons^™

The Problem About The Nature Of Law Vis-À-Vis Legal Rationality Revisited: Towards An Integrative Jurisprudence, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author argues, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. He further argues that attempting to move from-the-important-to-the-necessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has advocated. The authors argument also draws on the insights of Oliver Wendell Holmes Jr., who by discussing the important, but apparently neither necessary nor sufficient aspects of legal practice, integrated both logic and experience into …

Confucian Virtue Jurisprudence, Linghao Wang, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition.

This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of …

Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:

(1) a therapeutic jurisprudence model,

(2) a judicial monitoring model,

(3) an order maintenance model, and

(4) a decarceration model.

Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the …

Cute Prickly Critter With Presbyopia, Don Herzog

Reviews

Ronald Dworkin's' latest, long-awaited, and most ambitious book is a puzzle. Truth in advertising first: despite the title, this isn't centrally a book about justice. It's a book about the realm of value-all of that realm. Dworkin is most interested here in morality, but really touches on all of it, as a matter of the application of the abstract argument and sometimes in black and white right on the page, from aesthetics to prudence to morality to politics to law to . . . . It's fun to read, also frustrating. It stretches out lazily in handling some issues but …

Pro Bono Or Problemo: Can A Moral Obligation Effectively Bridge The 'Justice Gap'?, Jessica Ratner

Public Interest Law Reporter

No abstract provided.

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez

St. Mary's Law Journal

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …

Expanding Protective Order Coverage., Kellie K. Player

St. Mary's Law Journal

The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …

The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis

St. Mary's Law Journal

Abstract Forthcoming.

Economic Development And The Problem With The Problem-Solving Approach, Justin Deystone

Publications

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new …

Following A Sigmoid Progression: Some Jurisprudential And Pragmatic Considerations Regarding Territorial Acquisition Among Nation-States, John C. Duncan, Jr.

Journal Publications

This article analyzes methods and doctrines used by States to acquire territories. The role of the United Nations in resolving disputes between nations and the inhabitants directly affected by the disputes is also addressed, including the jurisdictional, jurisprudential, and practical considerations of territorial acquisition. Finally, traditional territorial acquisition doctrines are applied to extraterrestrial and outer space acquisition. As Western civilization etched out territories and borders across its known world, international norms of diplomatic behavior appeared in the form of customs. These customs eventually grew into codifications, which in turn grew into the elaborate international system enjoyed and protested today. Laws …

Open Justice: Concepts And Judicial Approaches, Emma Cunliffe

All Faculty Publications

Recent years have seen an increase in the number and scope of non-publication orders and other limits on open justice, an increase in the number of statutes that regulate or threaten open justice, and the articulation of an Australian constitutional principle (of institutional integrity) that has the potential to protect some aspects of open justice. The purposes and values of open justice are, however, rarely examined in a comprehensive or theoretically-informed manner. This article provides a theory of open justice which accounts for its heterogeneous nature. Australian judicial approaches to the substance, limits, and constitutional dimensions of open justice are …

Justice John Paul Stevens, Originalist, Diane Marie Amann

Scholarly Works

Commentators, including the author of a recent book on the Supreme Court, often attempt to give each Justice a methodological label, such as “practitioner of judicial restraint,” “legal realist,” “pragmatist,” or “originalist.” This Essay first demonstrates that none of the first three labels applies without fail to Justice John Paul Stevens; consequently, it explores the extent to which Justice Stevens’s jurisprudence paid heed to the fourth method, “originalism.” It looks in particular at Justice Stevens’s opinions in recent cases involving firearms, national security, and capital punishment. Somewhat at odds with conventional wisdom, the Essay reveals Justice Stevens as a kind …

The Limits Of Integrity, John D. Inazu

Scholarship@WashULaw

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not …

Why We Need A Progressive Account Of Violence, Aya Gruber

Publications

No abstract provided.

Planning Positivism And Planning Natural Law, Martin J. Stone

Articles

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no …

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Faculty Publications

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

Accentuate The Normative: A Response To Professor Mckenna, Jeremy N. Sheff

Faculty Publications

In his article, “A Consumer Decision-Making Theory of Trade-mark Law,” 98 Va. L. Rev. 67 (2012), Professor Mark McKenna makes two significant claims. The first is that the dominant Law and Economics theory of trademark law—the search-costs theory of the Chicago School—is in some way connected to recent undesirable expansions of trademark rights. The second is that a preferable theory of trademark law—one that would result in more tightly circumscribed and socially beneficial notions of trademark rights—would take consumer decision making, rather than search costs, as its guiding principle. I find myself sympathetic to these arguments, and yet I believe …

Can Equitable Estoppel Be Used As An Effective Way For A Legal Parent To Obtain Child Support For The Children Of A Separated Same-Sex Couple?, Josh Smolow

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Systems Pluralism And Institutional Pluralism In Constitutional Law: National, Supranational, And Global Governance, Daniel Halberstam

Book Chapters

Constitutions are often seen as creating a closed and hierarchically organized system of law. Constitutional systems are taken as closed to claims of legality from outside the system and as setting forth a hierarchy of norms and institutions that governs within the system. This consolidation of authority, in turn, is predominantly associated with a radical political (re)founding of the state. Politics are framed by law and law is grounded in an act of collective politics on the part of an existing or aspiring community defined by shared histories, norms, processes, and politics.

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, J.B. Ruhl, David L. Markell

Vanderbilt Law School Faculty Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is …

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Publications

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

The Market As A Legal Concept, Justin Deystone

Publications

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …

Race As A Legal Concept, Justin Deystone

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

Proximate Retribution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender's conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of his victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article …

Natural Law Theory: Its Past And Its Present, John M. Finnis

Journal Articles

The past in which theory of this kind had its origins is notably similar to the present. For this is theory-practical theory-which articulates a critique of critiques, and the critiques it criticizes, rejects and replaces have much in common whether one looks at them in their fifth century B.C. Hellenic (Sophistic) or their modem (Enlightenment, Nietzschean or postmodern) forms.

Region Codes And The Territorial Mess, Peter K. Yu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Contemporary Meaning And Expectations In Statutory Interpretation, Hillel Y. Levin

Scholarly Works

This Article introduces and explores an approach to, or theme within, statutory interpretation, one grounded in contemporary meaning and expectations. This approach posits that judges interpreting ambiguous statutes are and should be constrained by the understanding and expectations of the contemporary public as to the law’s meaning and application. These are developed in response to, and mediated by, the actions and statements of government officials and the broader community. The Article argues that this apparently radical approach is necessary in order for law to maintain its moral force, and further that the principles underlying it are embedded in several doctrines …