Jurisprudence Commons^™

Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores

Georgetown Law Faculty Publications and Other Works

In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), …

Book Review, Peter H. Huang

Publications

This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the …

The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona

St. Thomas Law Review

This article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states.

Judicial Independence: New Challenges In Established Nations, Martin Shapiro

Indiana Journal of Global Legal Studies

Because courts are both conflict-resolving and lawmaking bodies, they should be both independent and accountable. This paradox of incidence and accountability cannot be resolved but only addressed by various and shifting pragmatic accommodations between independence and accountability. Prosecutors, trial courts, appeals courts, and constitutional courts are each subject to differing consideration in arriving at such accommodations.

Moreover, courts, as courts of law, are not independent but are agents of statutory and constitutional lawmakers. Excessive emphasis on judicial independence creates the danger that authoritarian regimes may achieve a cloak of legitimacy for their laws by having them enforced by independent judiciaries. …

State Interests And The Duration Of Abortion Rights, Randy Beck

Scholarly Works

Few areas of the Supreme Court’s jurisprudence have attracted as much attention in recent decades as the case law recognizing a constitutional right to terminate a pregnancy. Justice Anthony M. Kennedy has exercised more influence over the Court’s abortion jurisprudence than perhaps any other sitting Justice. His jointly authored plurality opinion in Planned Parenthood of Southeastern Pa. v. Casey reaffirmed the basic right to an abortion first recognized in Roe v. Wade, applying that right to regulations effective from the outset of pregnancy. Later opinions, particularly Justice Kennedy’s dissent in Stenberg v. Carhart and his majority opinion in Gonzales v. …

Developing A Durable Right To Health Care, Erin C. Fuse Brown

Faculty Publications By Year

The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …

The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong

Indiana Journal of Global Legal Studies

This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …

Standing's Expected Value, Jonathan R. Nash

Faculty Articles

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive ex­pected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing juris­prudence by …

American Criminal Procedure In A European Context, Mar Jimeno-Bulnes

Cardozo Journal of International and Comparative Law

The article examines the historical and contemporary distinctions between the accusatorial and inquisitorial criminal justice systems, tracing their evolution from common law and civil law traditions. It highlights the increasing convergence of these models, particularly the influence of the U.S. adversarial system on European procedures, while critiquing the practical challenges and inefficiencies of both systems. The analysis emphasizes the tension between procedural fairness and efficiency, urging reforms to address these issues.

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary E. Berkheiser

Scholarly Works

No abstract provided.

Where Do The Prophets Stand?: Hamdi, Myth And The Master's Tools, Linda H. Edwards

Scholarly Works

No abstract provided.

Prosecutor V. Perišić, Case No. It-04-81-A, International Criminal Tribunal For The Former Yugoslavia, Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

Introductory Note To Prosecutor V. Perišić, International Criminal Tribunal For The Former Yugoslavia (Icty), Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

The Skeptic’S Guide To Information Sharing At Sentencing, Ryan W. Scott

Utah Law Review

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

Devising Law: On The Philosophy Of Legal Emblems, Peter Goodrich

NYLS Law Review

No abstract provided.

Can A Pluralistic Commonwealth Endure?, Brian Mccall

Faculty Articles

This article considers whether the American pluralist system can satisfy Cicero's definition of a commonwealth as a multitude united in a definition of law and justice. The analysis is based upon a review of Thaddeus Kozinski's book, The Problem or Religious Pluralism and Why Philosophers Can't Solve It. This book critiques the philosophy of John Rawls, Jacques Maritain and Alisdaire MacIntyre. The critique is based upon Cicero's definition of a commonwealth and the article concludes that a society which maintains a deep pluralism over the first principles of law and justice cannot survive as a commonwealth.

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

The Law Of The Image And The Image Of The Law: Colonial Representations Of The Rule Of Law, Desmond Manderson

NYLS Law Review

No abstract provided.

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

All Faculty Scholarship

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

Civil Rights For The Twenty-First Century: Lessons From Justice Thurgood Marshall's Race-Transcending Jurisprudence, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay pays tribute to justice Thurgood Marshall's race-transcending vision of universal human dignity, and explores the importance of building cross-racial alliances to modern civil rights advocacy. justice Marshall's role as a "Race Man" is evident in much of his jurisprudence, where he fought for years to promote equal opportunity and equal justice. As an advocate for all marginalized people, justice Marshall viewed equal justice as transcending race, and this Essay suggests that the multi-racial coalition that supported President Obama aligns with Marshall's vision. The Essay evaluates the civil rights movement through the lens of Justice Marshall's equality analysis, and …

Legal Thought In Enlightenment’S Wake, Jeffrey A. Pojanowski

Journal Articles

A review of Steven D Smith, The Disenchantment of Secular Discourse (Harvard University Press, 2010) 264 pp, Hbk £20.95, ISBN 978-0674050877.

This review essay considers Steven D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about …

Toward A Jurisprudence Of Law, Peace, Justice, And A Tilt Toward Non-Violent And Empathic Means Of Human Problem Solving, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this essay the author sets out some questions about whether law can be made a site of encouraging more positive, peace seeking, non-violent, and pro-social behaviors. These questions derive from my own family history, as well as from my experience as a social and political activist, and also as a practicing lawyer and legal scholar. She begins in the introduction by setting out these questions in light of current conditions of domestic and international violence and some past considerations of categories of law. In the second section of this essay the author explains where her questions come from—her personal …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

Bond V. United States: Can The President Increase Congress's Legislative Power By Entering Into A Treaty?, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that "[t]he powers of the legislature are defined, and limited."S It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone--or a foreign government alone--can decrease Congress's power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Political And Constitutional Obligation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to …

Law Among The Sight Lovers, Francis J. Mootz Iii

NYLS Law Review

No abstract provided.

Arrested By The Image, Alison Young

NYLS Law Review

No abstract provided.

Deleuze And The Maiden: A Short Introduction To Legal Pornology, Laurent De Sutter

NYLS Law Review

No abstract provided.