Jurisprudence Commons^™

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

"She Stedfastly Accused Him In The Time Of Her Travail": Women's Words And Paternity Suits In 18th-Century Massachusetts, Kristin A. Olbertson

Cardozo Journal of Equal Rights & Social Justice

The article examines the decline of women's testimony in bastardy cases in post-revolutionary Massachusetts, arguing that this shift was driven by changing gender ideologies, the Anglicization of legal procedures, and the increasing exclusion of women from authoritative roles. While women's testimony was once central to determining paternity, by the late 18th century, male jurors became the primary decision-makers, reflecting broader societal efforts to restrict women's public roles. The analysis highlights how this transition underscores the intersection of legal and cultural changes in early America.

Abandoning Women To Their Rights: What Happens When Feminist Jurisprudence Ignores Birthing Rights, Rebecca A. Spence

Cardozo Journal of Equal Rights & Social Justice

The article argues that feminist jurisprudence has neglected the critical issue of birthing rights, failing to integrate them into legal scholarship and education. This omission leaves women vulnerable to violations of their autonomy and dignity during childbirth, as courts and legislatures often prioritize fetal interests and medical authority over women's rights. The article emphasizes the need for a more robust legal framework that protects women's rights to make autonomous decisions about their care, including access to midwifery and the right to refuse medical interventions.

The Faculty Workshop, Pierre Schlag

Publications

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

Legislating Inclusion, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Using The Papers Of U.S. Supreme Court Justices: A Reflection, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, …

Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

Introduction: How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it? There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.

All Fact Is Beautiful Theory: The Romantic Philip Selznick, Robert Eli Rosen

Articles

Properly understood, Philip Selznick is a chastened romantic of the Left and is mischaracterized as a man of the Right. To Marx, Selznick added insights derived form Freud and Dewey. He was committed to the moral primacy of facts and the conditions under which they realized values. Selznick’s organicism is discussed and critiqued.

Africa And The International Criminal Court, Charles C. Jalloh

Articles

No abstract provided.

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Touro Law Review

No abstract provided.

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …

Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …

The Distinctiveness Of Appellate Adjudication, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This paper concerns two topics which, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the workings of entangled concepts in the law. That appellate adjudication is important in some sense may seem obvious to everybody (to a few it will seem obvious that appellate adjudication is unimportant). My point will be that via appellate adjudication courts engineer entangled legal concepts, and it is this aspect of appellate adjudication that is both crucial and unique to it, at least in the U.S. legal system. …

The Clinical Mission Of Justice Readiness, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

Law schools strive to teach students to be practice ready. That noble goal, however, is not enough. Because of the powerful role that lawyers play in society, educators must also teach students to be “justice ready.” Justice ready graduates are able to recognize injustice and appropriately evaluate the consequences of their actions in a way that mere practice readiness does not teach. The traditional law school curriculum fails to teach justice readiness, instead inculcating in students a penchant for the status quo—an unjust and unchanging social order. Clinical education is the solution for creating justice ready graduates. Its use of …

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

Scholarly Works

This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to …

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

Superheroes, Bandits, And Cyber-Nerds: Exploring The History And Contemporary Development Of The Vigilante, Stephanie Juliano

Scholarly Works

This article will first discuss what defines a vigilante, the history of vigilantes, and the contemporary vigilante's effect on the legal system as a whole. Also, this article will focus on those scenarios that bring an ordinary person to react in an illegal way to a perceived injustice. In focusing on these scenarios, this article will examine a little more closely the answers of deeper questions about the nature of law and justice, and their roles in the accelerating world of new media.

Must Licenses Be Contracts? Consent And Notice In Intellectual Property, Mark R. Patterson

Faculty Scholarship

Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of the lack of clarity is the ill-defined …

Provocation At Face Value, Kyron J. Huigens

Articles

To take provocation at face value is to plead and prove it as a manslaughter offense, as it is defined in most criminal codes. To do this seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, set out to prove a lesser crime than the crime …

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

Renegotiating The Social Contract, Jennifer S. Hendricks

Publications

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber

Publications

No abstract provided.

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Publications

No abstract provided.