Jurisprudence Commons^™

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the …

Foreword: Theorizing Contemporary Legal Thought, Justin Deystone, Duncan Kennedy

Publications

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Hamrick V. Ward: Clarifying Implied Easement Law., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees., George P. Roach

St. Mary's Law Journal

Abstract Forthcoming.

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

Originalism And The Rule Of The Dead, Joel Alicea

Scholarly Articles

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism — the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

On Law-Breaking And Law’S Legitimacy, Aliza Plener Cover

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Judicial Conflict Resolution (Jcr): A New Jurisprudence For An Emerging Judicial Practice, Michal Alberstein

Cardozo Journal of Conflict Resolution

In the past few decades, the role of judges has changed dramatically, yet its nature has remained largely unexplored. To date, most cases settle or reach plea-bargaining, and the greater part of judges' time is spent on managing cases and encouraging parties to reach consensual solutions. Adjudication based on formal rules is a rare phenomenon which judges mostly avoid. This Article argues that the various Conflict Resolution methods, which are used outside the courtroom, as alternatives to adjudication, could have a strong and positive influence, both theoretical and practical, on judicial activities inside the courts. Theoretically, the Article develops a …

The Jury's Constitutional Judgment, Nathan Chapman

Scholarly Works

Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?

This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.

Biometric Passwords And The Privilege Against Self-Incrimination, Kara Goldman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Taking Users' Rights To The Next Level: A Pragmatist Approach To Fair Use, Niva Elkin-Koren, Orit Fischman-Afori

Cardozo Arts & Entertainment Law Journal

Exceptions and limitations to the rights of copyright owners aim to promote copyright goals in a rapidly changing world. Policymakers are often faced with the choice of either adopting an open-norm, such as fair use, to facilitate flexibility and adaptability, or opt for a strictly defined list of exceptions and limitations to facilitate more certainty and predictability. So far, this binary choice between bright-line rules and vague standards has created a deadlock.

This paper argues that in order to promote a reasoned implementation of fair use and serve both the purpose of copyright law and the rule of law, courts …

This Book Is Not Yet Rated: Age Ratings In The Literary Market Vs. Minors' First Amendment Right To Receive Information, Nathalie De Choudens Baez

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Draft Provincial/Territorial Legislation To Implement A Regulatory Framework For Medically-Assisted Dying Consistent With Carter V. Canada (Attorney General) 2015 Scc 5 And The Final Report Of The Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying, Jocelyn Downie

Reports & Public Policy Documents

On February 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. They immediately suspended the declaration for 12 months thus allowing the government time to craft new legislation. This paper is a contribution to the project of meeting that deadline -- it presents draft provincial/territorial legislation. This draft legislation is based on: 1) a thorough review of existing legislation in all permissive regimes throughout the world (reviewed through a "lessons learned" lens); 2) the requirements for constitutional validity …

Structuralist Legal Histories, Justin Deystone

Publications

This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.

Thomas Bold's Chancery Reports, William Hamilton Bryson

Law Faculty Publications

Thomas Bold was born in 1695, the son of William Bold of St. Bride's Parish, London. He entered Westminster School in 1708 and Christ Church, Oxford, on 23 June 1713. Bold received his B.A. in 1718 and an M.A. in 1721. He was admitted as a law student at the Middle Temple on 15 June 1711 and called to the bar on 31 May 1717. He was admitted ad eundem at Lincoln's Inn on 23 November 1717.

Intentionalism Justice Scalia Could Love, Hillel Y. Levin

Scholarly Works

Book review of The Nature of Legislative Intent by Richard Ekins (Oxford 2012).

The Holmes School Of Law: A Proposal To Reform Legal Education Through Realism, Robert Rubinson

All Faculty Scholarship

This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about "law in fact"—how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all …

Agreements To Alter The Limitation Period Imposed By U.C.C. Section 2-725: Some Overlooked Complications., Gregory Crespi

St. Mary's Law Journal

Abstract Forthcoming.

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …

Texas Inventory Tax: Appraisal Districts' Misunderstanding Of The Law Causing Texas Retailers To Pay The Price., Timothy Johnson

St. Mary's Law Journal

Abstract Forthcoming.

Employee Recourses To Manager-Revealed Private Health Information., Molly Thomson

St. Mary's Law Journal

Abstract Forthcoming.

Tzadek, Tzadek Tirdof -Justice, Justice You Shall Pursue: Romer, Lawrence, & Windsor: A Critique Of Justice Scalia's Dissenting Opinions, Kris Mcdaniel-Miccio

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Gendering The Compliance Agenda: Feminism, Human Rights And Violence Against Women, Megan Louise Pearce

Cardozo Journal of Equal Rights & Social Justice

The article argues that while the due diligence standard in international human rights law has been a significant step forward in addressing violence against women, it has not yet delivered real change. The gap between legal promise and reality persists, and the article contends that addressing this gap requires integrating feminist insights into compliance theories. By applying feminist critiques to these theories, the article seeks to illuminate why the due diligence standard has been ineffective in eliminating violence against women and to highlight areas for future research.

Accident Of Birth Or Matter Of Choice: Legal Recognition Of Transsexual People In The Common Law, Kevin K.S. Tso

Cardozo Journal of Equal Rights & Social Justice

The purpose of the Article is to look at the recognition-or lack thereof-of transsexual people at common law in relation to the "proper" sex and gender with which they associate themselves. This Article will begin by addressing and defining transsexualism and how the medical community's position on this topic has evolved over the years. It will then look at the historical foundations of transsexualism in the common law, especially at the Corbett decision that held sway in England and Wales for over thirty-five years and was followed internationally. The Article will then provide an overview of the current positions in …