Jurisprudence Commons^™

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

Constructing More Reliable Law And Policy: The Potential Benefits Of The Underused Delphi Method, Juan Bataller-Grau, Elies Segui-Mas, Javier Vercher-Moll, Jeffrey W. Stempel

Scholarly Works

Law has long aspired to achieve status as a science. A central theme of much legal philosophy has been the quest for legal doctrine to become more like scientific axioms or findings produced through a scientific inquiry. Considerable debate has surrounded the issue. Part of the legal profession sees the question of law's science status as doomed to failure and regards law as a distinct type of discipline. Others in the legal profession are attracted to the aspiration but express doubt regarding whether the methods that the legal doctrine has traditionally employed can achieve the greater apparent rigor of the …

The Limits Of Legal Evolution: Knowledge And Normativity In Theories Of Legal Change, Liam Mchugh-Russell

PhD Dissertations

Over the last forty years, legal theory and policy advice have come to draw heavily from an ‘evolutionary’ jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life — interests, institutions, systems — from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Should Robots Prosecute And Defend?, Stephen E. Henderson

Faculty Articles

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge …

Beyond Samuel Moyn's Countermajoritarian Difficulty As A Model Of Global Judicial Review, James T. Gathii

Vanderbilt Journal of Transnational Law

This Article responds to Samuel Moyn's critique of judicial review and his endorsement of judicial modesty as an alternative. By invoking the countermajoritarian difficulty, Moyn argues that judicial overreach has become an unwelcome global phenomenon that should be reexamined and curbed. I reject Moyn's claim that this kind of judicial modesty should define the role of courts for all time. By applying the countermajoritarian difficulty beyond its United States origins, Moyn assumes it is an unproblematic baseline against which to measure the role of courts globally. Moyn's vision says nothing about when it would be appropriate for courts to rule …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

Predetermined? The Prospect Of Social Determinant-Based Section 1115 Waivers After Stewart V. Azar, Griffin Schoenbaum

Dickinson Law Review (2017-Present)

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each …

Foreword To Latcrit 2017 Symposium: What’S Next? Resistance Resilience And Community In The Trump Era, Jorge R. Roig, Saru M. Matambanadzo, Sheila I. Vélez-Martínez

Scholarly Works

In this Foreword, we strive to contextualize “LatCrit XXI: What’s Next?” against the backdrop of two crises: the current political crisis in the United States and the continuing crisis of scarcity that impacts the legal academy. Through an examination of these crises, we will reveal how LatCrit scholars, in their efforts to build community and in their commitment to critical outsider scholarship, are part of the constellations of resistance that struggle against el mundo malo. We will argue that LatCrit has become a necessary institution for those seeking to engage in persistent resistance and dissent in the critical and progressive …

Court Review: Journal Of The American Judges Association, Vol. 55, No. 3

Court Review: Journal of the American Judges Association

Court Review, the quarterly journal of the American Judges Association, invites the submission of unsolicited, original articles, essays, and book reviews. Court Review seeks to provide practical, useful information to the working judges of the United States and Canada. In each issue, we hope to provide information that will be of use to judges in their everyday work, whether in highlighting new procedures or methods of trial, court, or case management, providing substantive information regarding an area of law likely to be encountered by many judges, or by providing background information (such as psychology or other social science research) that …

Court Review: Journal Of The American Judges Association, Vol. 55, No. 3, Eve M. Brank, David Dreyer, David Prince

Court Review: Journal of the American Judges Association

Civil Cases in the Supreme Court’s October 2018 Term by Todd E. Pettys

Do Judges’ Instructions about Eyewitnesses Really Work?: A 2019 Update by Christine M. McDermott and Monica K. Miller

Elected v. Appointed: Who Wins? Judicial Selection — Book Review/Q&A by David J. Dreyer

Editor’s Note

President’s Column

Crossword

Thoughts from Canada

The Resource Page

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

Aedpa As Forum Allocation: The Textual And Structural Case For Overruling Williams V. Taylor, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Williams v. Taylor, the Supreme Court read a section of the Anti- Terrorism and Effective Death Penalty Act (AEDPA) to change the long-prevailing de novo standard of review of federal habeas petitions by state prisoners. In holding that Congress had denied the lower federal courts the power to grant habeas relief to prisoners in custody pursuant to wrong but reasonable state court decisions, the Court departed from the provision’s text and relied instead on its perception of a generalized congressional purpose to cut back on habeas relief and on the non-redundancy canon of statutory construction. On both scores, …

Contracts, Constitutions, And Getting The Interpretation-Construction Distinction Right, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is clear and definite. …

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.

All Balls And No Strikes: The Roberts Court’S Anti-Worker Activism, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.

In 2012, I traced how the Roberts Court paid scant attention to the integral role …

Teaching Jurisprudence In A Catholic Law School, Jeffrey A. Pojanowski

Journal Articles

This essay is a contribution to a symposium on John Breen and Lee Strang's forthcoming book, A Light Unseen: A History of Catholic Legal Education in the United States. Breen and Strang's book offers not just a history, but a program for the future of Catholic legal education. Their program places the teaching of jurisprudence and the natural law tradition at the center of Catholic legal education. This essay draws on lessons from teaching jurisprudence at Notre Dame Law School which, in delightfully countercultural fashion, is one of the few remaining law schools in the nation that require jurisprudence. It …

The Ilc At Its 70th Anniversary: Its Role In International Law And Its Impact On U.S. Jurisprudence, Siegfried Wiessner, Christian Lee González

FIU Law Review

No abstract provided.

Hallows Lecture: Ambition And Aspiration: Living Greatly In The Law, Lee H. Rosenthal

Marquette Law Review

none

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Marquette Law Review

This Article studies statutory interpretation as it is practiced in the federal

courts of appeal. Much of the academic commentary in this field focuses on the

Supreme Court, which skews the debate and unduly polarizes the field. This

Article investigates more broadly by looking at the seventy-two federal

appellate cases that cite King v. Burwell in the two years after the Court issued

its decision. In deciding that the words “established by the State” encompass

a federal program, the Court in King reached a pragmatic and practical result

based on statutory scheme and purpose at a fairly high level of …

Law As A Means To Human Flourishing: Law, Morality, And Natural Law In Policy-Oriented Perspective, Christian L. Gonzalez-Rivera

Faculty Articles

Friendships can be uneasy without ceasing to be friendships. Because the "pie" of law and morality's relationship can be sliced in many ways and to different yields, in what follows, I consider the simultaneously unexplored, uneasy, and yet promising relationship between the Natural Law tradition and Policy-Oriented Jurisprudence (or "New Haven"), hoping that doing so will partially illuminate aspects of the relationship between morality and the law more generally. My aim is to describe what and how New Haven School founders Myres McDougal and Harold Lasswell thought about Natural Law. As it will become clearer below, despite their critical appraisal …

The Strings In The Books Ain't Pulled And Persuaded: How The Use Of Improper Statistics And Unverified Data Corrupts The Judicial Process In Sex Offender Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

An examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and under-developed statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive and untreatable, contributes to the anti-therapeutic effect of shaming and humiliation. This results in isolation, seclusion, lack of dignity; also, it further trivializes the judicial process, and violates the tenants of therapeutic jurisprudence. Despite the “frightening …

There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly …

Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe

Articles & Chapters

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …

To Promote Innovation, Congress Should Abolish The Supreme Court Created Exceptions To 35 U.S. Code Sec. 101, Shahrokh Falati

Articles & Chapters

No abstract provided.

The Government Should Not Always Win: I.R.S. Practices That Verge On Unconstitutional Practices, Kayla Kendrick Odom

Barry Law Review

No abstract provided.

Immigration's Future: Closing The Door On The American Dream?, Ritcy Canelon

Barry Law Review

No abstract provided.

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.