Jurisprudence Commons^™

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as “sexually violent predators” to civil commitment facilities post incarceration and/or conviction. Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. Targeting, punishing and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even more …

The Inner Morality Of Private Law, Benjamin C. Zipursky

Faculty Scholarship

Lon Fuller's classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name "law" at all. In this essay, I argue that Fuller's basic principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, …

The Omnipresent Specter Of Omnicare, Sean J. Griffith

Faculty Scholarship

In this Article, written for a symposium commemorating the tenth anniversary of the Delaware Supreme Court’s opinion in Omnicare, Inc. v. NCS Healthcare, Inc., I argue, notwithstanding reports to the contrary, that Omnicare is still very much with us. Although there is a line of cases that qualifies the narrow holding of the opinion, the strong reading of Omnicare, which requires a fiduciary out in every merger agreement and elevates the “unremitting” duty to remain “fully informed” to an absolute jurisprudential principle, lives on in Delaware law, animating the Court of Chancery’s controversial rulings in the recent standstill cases. Shifting …

Response To Condlin's Critique Of Transformative Mediation, Robert A. Baruch Bush, Joseph P. Folger

Cardozo Journal of Conflict Resolution

We welcome thoughtful critical analysis of the transformative framework because we believe such comments further substantive discussion and debate. Some prior critiques of the framework have been beneficial in helping to clearly map the ideological divide in the ADR field-a divide that separates very different approaches to conflict intervention. Cogent and honestly substantiated critiques of the transformative approach have strengthened the discourse about conflict intervention practice by building stronger arguments on all sides of the debate over the various goals and expectations for mediation.

Justice William J. Brennan, Jr., James Wilson, And The Pursuit Of Equality And Liberty, Deborah A. Roy

Cleveland State Law Review

This Article analyzes the jurisprudence of one of the most transformative Supreme Court Justices, William J. Brennan, Jr., from the perspective of his vision that the United States Constitution is founded on Human Dignity. Justice Brennan expressed this principle in his opinions that advanced the realization of individual rights for each and every American. The principle of human dignity invokes the values of equality and liberty. The article shows that Justice Brennan traced the principle of human dignity back to the Founding Fathers and the constitutional government that they established. Rather than being unhinged from the Constitution as his critics …

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Journal Articles

Constitutional precedents give rise to a jurisprudential tug-of-war. On one side is the value of adhering to precedent and allowing the law to remain settled. On the other side is the value of departing from precedent and allowing the law to improve. In this Article, I contend that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method. My aim is to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation. I seek to demonstrate that although certain consequences of deviating from precedent can be studied …

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

Articles

This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.

The Search For Authenticity And The Manipulation Of Tradition: Restrictions On Women's Reproductive Rights In The United States And Egypt, Sarah M. Stephens

Cardozo Journal of Equal Rights & Social Justice

The article argues that restrictions on women's reproductive rights in both the U.S. and Egypt are rooted in the use of authenticity and cultural essentialism to maintain patriarchal control. These restrictions, though justified through differing cultural and legal frameworks, reflect a common goal of silencing women and preserving traditional social hierarchies. The analysis highlights how law and politics are employed as tools to construct cultural otherness, furthering political agendas at the expense of women's reproductive autonomy and dignity.

Discriminating Speech: The Heterophilia Of The Freedom Of Speech Doctrine, Zvi Triger

Cardozo Journal of Equal Rights & Social Justice

In this Article, I seek to shed light on freedom ofspeech jurisprudence as it is reflected in the Snyder v. Phelps and Skokie cases, as well as in two analogous Israeli cases, namely petitions of members of the extreme right against the pride parades in Jerusalem, as well as petitions by the same petitioners for police permits to hold anti-Arab processions in the Arab town of Umm al-Fahm.

Comparing the cases, I identify the moral relativity built into the interpretation offreedom of expression doctrine in both countries. I introduce the concept of discriminating speech, which is speech that is designed …

An Unlikely Feminist Icon?: Justice Harry A. Blackmun's Continuing Influence On Reproductive Rights Jurisprudence, Sarah Primrose

Cardozo Journal of Equal Rights & Social Justice

The article examines Justice Harry Blackmun's pivotal role in the landmark *Roe v. Wade* decision, which legalized abortion in the United States and significantly advanced women's reproductive rights. Despite his initial reluctance to take on the case, Blackmun's opinion established a woman's right to privacy under the Fourteenth Amendment, balancing this right against state interests. The decision has had profound and enduring implications for women's autonomy and equality, though it has also faced persistent challenges and critiques, including concerns about its constitutional basis and the arbitrariness of the trimester framework. The article highlights Blackmun's personal background and jurisprudential approach, emphasizing …

Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui

All Faculty Publications

The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …

Panel I: Critical Legal Studies In Intellectual Property And Information Law Scholarship, Peter Goodrich, Sonia K. Katyal, Rebecca Tushnet

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The History Of International Adjudication, Mary Ellen O'Connell, Lenore Vanderzee

Book Chapters

This chapter on the history of international adjudication will show that courts and tribunals have been part of international law since the emergence of modern international law with the rise of the state system in the mid-seventeenth century. Courts and their role within international law have also been a persistent part of the theoretical debates about the nature of international law. From an early emphasis on arbitration, support grew for the creation of courts with general compulsory jurisdiction. By the late twentieth century, the theoretical trend shifted toward interest in courts with special subject matter jurisdiction, including human rights, trade, …

The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Neofeminism, Aya Gruber

Publications

Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice and recognize …

The U.N. Security Council's Duty To Decide, Anna Spain

Publications

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical …

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …

Natalie Stoljar’S Wishful Thinking And One Step Beyond: What Should Conceptual Legal Analysis Become?, Imer Flores

Georgetown Law Faculty Publications and Other Works

Praising wishful thinking is a serious risk that the author is willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in his scholarship. The author will analyze her claims and will agree mostly with them, he will also criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. The author intends to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects …

The Problem Of Democracy In Contexts Of Polarization, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper I argue that contemporary democracies all over the world are more polarized than ever and intend to analyze not only the conditions of possibility of a democracy, in general, and in contexts of polarization, in particular, but also the relationship between democracy and polarization. My claim is that polarization, if certain conditions are met, more than a problem it is a great opportunity to democracy and a greater democratization. Hence, I bring to mind that it was Ronald Dworkin, who recently asked about the conditions of possibility of a democracy and its relationship with polarization by developing …

The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin

Articles & Chapters

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is …

The Rule Of Law And The Perils Of Precedent, Randy J. Kozel

Journal Articles

In this Essay, I wish to build on Professor Waldron's thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive …

Precedent And Jurisprudential Disagreement, Amy Coney Barrett

Journal Articles

This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, "error" is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different …

Comment On “Excessive Ambitions (Ii)” By (Jon Elster), Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels

Faculty Scholarship

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.

International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …

Reply - Commercialization Without Exchange, Michael J. Burstein

Articles

In this brief reply to Prof. Ted Sichelman’s comments on my article Exchanging Information Without Intellectual Property, I argue that justifications for intellectual property that rely on the incentives exclusive rights offer for commercialization are not economically distinguishable from traditional theories based on incentives to invent or create in the first instance. Because innovation is not an event but a process, innovative activities may be subject to misappropriation – and therefore under-production – at multiple points along the supply chain that runs from conception to commercialization. The grant of exclusive rights is an intervention that can be made at any …

Legal Positivism And Russell's Paradox, David G. Carlson

Articles

In this Article, I argue that legal positivism is subject to the same paradox as was engendered by Frege's set theory-a paradox that has come to be known as Russell's Paradox. Basically, Frege tried to define what a set is. Russell showed that, because of self-reference, any attempt to define the word "set" led to formal condition. I argue that Russell's analysis can be applied to legal positivism, if "legal positivism" is defined to mean that a complete and closed rule of recognition for law is a logical possibility. I also argue that, to the extent legal positivism claims that …