Jurisprudence Commons^™

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Infrequently Asked Questions, Edward T. Swaine

The Journal of Appellate Practice and Process

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …

What Remains "Real" About The Law And Literature Movement?: A Global Appraisal, Richard H. Weisberg

Articles

The article explores the enduring relevance and global expansion of the Law and Literature movement, emphasizing its unique contribution to legal discourse by analyzing how narratives reveal the operation of law, the interpretations of legal authorities, and the identifiable causes of legal errors. It argues that literary jurisprudence provides a distinct methodology for understanding jurisprudence, challenging traditional legal scholarship and offering insights into systemic injustices and pathways to justice.

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.

The Grace Of God In The Law Of Moses: A Second Look At Israel’S Written Code, Jeffrey S. Krause

Fidei et Veritatis: The Liberty University Journal of Graduate Research

For centuries, the Mosaic Code (“MC”) has been viewed as Israel’s prescriptive legislation, whereby Jewish leaders were to judge infractions by the “letter of the law.” This view is one which permeates both pulpit and pew alike, even in this modern era. However, recent developments in scholarship are challenging this understanding of MC, concluding instead that this “law code” was not utilized in Israelite jurisprudence, but rather as a covenant contract that worked not prescriptively in the lives of the Jews, but rather descriptively, in that it relayed the heart of YHWH to its reader. Accordingly, MC was to be …

Ruling The Skies Or Drowning In Rules? A Look At The Faa’S Sluggish Progress In Developing Rules And Forces That Might Be Shaping The Future Of Drone Use In The United States, Thomas D. Lovett

Barry Law Review

No abstract provided.

The Right To Refuse: The Legal Counterbalance For Religious Businesses And Same-Sex Marriage Promotion To Curtail The Rippling Wave Of Tension Eruption Across The Nation And Florida, Ta’Lor Mcfarland

Barry Law Review

No abstract provided.

The Truth (Of The Matter Asserted) Is Out There: Law And The Paranormal Outside The First Amendment, Christopher L. Henry

Barry Law Review

No abstract provided.

From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski

Barry Law Review

No abstract provided.

Modern Debtors' Prison In The State Of Florida: How The State's Brand Of Cash Register Justice Leads To Imprisonment For Debt, David Angley

Barry Law Review

No abstract provided.

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.

Workers' Compensation Law & The Remedial Waiver, Mary Kati Haupt

Barry Law Review

No abstract provided.

Current Circuit Splits

Seton Hall Circuit Review

No abstract provided.

First Impressions

Seton Hall Circuit Review

No abstract provided.

Case Study On The Galapagos Islands: Balance For Biodiversity & Migration, Cesar E. Neira

Environmental and Earth Law Journal (EELJ)

In this comment, the author will examine the Special Organic Law of the Galapagos. To better understand the impacts of the law, the comment will examine some of the more notable provisions of the 1998 version, and a few of the amended changes in 2015. Throughout this comment, themes such as migration and preserving biodiversity will be discussed. As we will see, this notion of balancing human needs and ecosystem in the islands is not always straight-forward.

Trouble In Paradise: Maintaining The Eu Ideal For Environmental Policy In Eestern Europe, Amanda L. Harb

Environmental and Earth Law Journal (EELJ)

Ten Central and Eastern European nations have joined the EU in the last decade. The conditions for joining the EU are scrupulous and expansive, covering everything from: election rules, food product labels, and battery disposal. CEE states who are newly inducted into the EU are currently striving to successfully implement the complete extent of collected EU law. Eastern Europe has long lagged behind the west in environmental policy. Extreme industrialization and widespread deregulation over the last century produced many areas with environmental degradation. The idea is that by adopting European environmental policy, Eastern European states can cash in on European …

Too Many Humans, Dwindling Resources, And Not Enough Space, Jorge T. Martinez

Environmental and Earth Law Journal (EELJ)

This paper will address the often-overlooked subject of human overpopulation and examine the role it plays in the environmental health of our planet. Part I will define overpopulation and how it is determined, as well as briefly examine animal overpopulations and their effects on the environment. Part II will turn to human population trends, the carrying capacity of humans on earth, and the environmental consequences of human overpopulation. The environmental issues currently faced in China, India, Africa, and other densely populated areas will be explored. Part III will analyze some of the legal solutions that have been implemented to curb …

Equal Protection For Animals, Pat Andriola

Environmental and Earth Law Journal (EELJ)

This paper presents a simple argument: through a Dworkinian moral reading of the Constitution, nonhuman animals fall under the Supreme Court’s equal protection doctrinal framework for suspect classification. Therefore, nonhuman animals are protected by the Fourteenth Amendment. The moral principle underlying equal protection is the ensuring of government’s empathetic and equitable treatment toward not just subgroups of humans (which have been judicially delineated by social constructs of race, gender, sexuality, and other defining characteristics), but toward all sentient beings who may become victim to the “tyranny of the majority.

Customary International Law, The Separation Of Powers, And The Choice Of Law In Armed Conflicts And Wars, John C. Dehn

Cardozo Law Review

After over fourteen years of continuous armed conflict, neither courts nor commentators are closer to a common understanding of how, or the extent to which, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates and defends the first normative theory regarding the general relationship of customary international law to the U.S. legal system that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law …

Teaching The Quandary Of Statistical Jurisprudence: A Review-Essay On Math On Trial By Schneps And Colmez, Noah Giansiracusa

Journal of Humanistic Mathematics

This review-essay on the mother-and-daughter collaboration Math on Trial stems from my recent experience using this book as the basis for a college freshman seminar on the interactions between math and law. I discuss the strengths and weaknesses of this book as an accessible introduction to this enigmatic yet deeply important topic. For those considering teaching from this text (a highly recommended endeavor) I offer some curricular suggestions.

The Mixed Courts Of Egypt: A Study On The Use Of Natural Law And Equity, Gabriel M. Wilner

Georgia Journal of International & Comparative Law

No abstract provided.

Equity In International Law: Its Growth And Development, S. K. Chattopadhyay

Georgia Journal of International & Comparative Law

No abstract provided.

Holmes's 'Path Of The Law' As Non-Analytic Jurisprudence, Dan Priel

Articles & Book Chapters

Despite being widely read and the source of numerous oft-cited aphorisms “The Path of the Law” remains elusive. To put the matter starkly: What is its thesis? Does it have one? How can we reconcile its matter-of-factly opening pages and its almost mystical conclusion? For some this was just proof that Holmes was a superficial and contradictory thinker; for others it suggested that “Path” should be read a series of interesting insights and arresting phrases, and nothing more. In this essay I suggest reading Holmes’s famous speech as an essay with a thesis about, well, the path of the law. …

Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki

Indiana Law Journal

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …

The Device Of Fiction In Public International Law, Jean J. A. Salmon

Georgia Journal of International & Comparative Law

No abstract provided.

The Scrivener’S Error, Ryan D. Doerfler

Northwestern University Law Review

It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are “absolutely clear.” The rationale is that if a court were to recognize a less clear error, it might be “rewriting” the statute rather than correcting a technical mistake.

This Article argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. Accordingly, because the current doctrine is designed to protect against one type of mistake (false positives) but …