Jurisprudence Commons^™

Language, Legitimacy, And The Law: The Social Roots Of Legal Obligation, Joshua Keton

Dissertations, Theses, and Capstone Projects

In a recent turn, both legal scholarship and judicial practice in the United States have converged on the idea that the content of the law is grounded on moral facts—especially facts about democracy. Leveraging insights from the philosophy of language, especially the underdetermination of meaning by syntax and semantics, I argue that textualism can only be reconstructed as a small part of a complete theory of legal interpretation. I then consider a more serious claim to the necessity of moral facts in metaphysically grounding the content of the law. As Mark Greenberg’s anti-positivist theory would have it, the content of …

On Comprehensive Pluralism: Two Pluralistic Deficits, Daniel Bonilla Maldonado

Cardozo Law Review

A Pluralist Theory of Constitutional Justice offers a powerful normative theory of liberal constitutionalism: comprehensive pluralism. This theory links liberal constitutionalism with distributive justice. Comprehensive pluralism requires that the three dimensions that compose this concept of justice—redistribution, recognition, and representation—drive the attempts to balance ethos and demos in liberal constitutional democracies, as well as the attempts to balance the singular, plural, and universal dimensions that constitute such political communities. The normative proposal offered by Michel Rosenfeld in his book has numerous strengths. Three of them, which cut across the entirety of his proposal, are particularly noteworthy. On the one hand, …

Blunt Speech Rights, Nicholas Almendares

William & Mary Bill of Rights Journal

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of …

Immoderate Moderation: Chief Justice Roberts's Concurrence In Dobbs, Thomas J. Molony

William & Mary Bill of Rights Journal

Chief Justice John Roberts attempted to chart a middle way in Dobbs v. Jackson Women’s Health Organization. But there are times when you must choose a side. This was one of them.

The Chief Justice has been a consistent proponent of judicial restraint since he joined the United States Supreme Court in 2005. For him, one of the key characteristics of restraint is deciding no more than necessary to resolve a case. In Dobbs, he insisted that the Court did not need to overrule Roe v. Wade and Planned Parenthood v. Casey in full to uphold Mississippi’s fifteen-week …

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …

Survival Labor, Yvette Butler

Articles by Maurer Faculty

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating racialized bodies and the policing of those bodies has created a culture where blackness is equivalent to criminality. While a penal abolitionist framework is helpful …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler

Faculty Scholarship

This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this Article, …

Law's Legitimacy: Lon Fuller In A Consequentialist Frame, Daniel L. Feldman

Dissertations, Theses, and Capstone Projects

This thesis argues that Lon Fuller’s approach to jurisprudence offers more important support to the rule of law than has been generally recognized. It argues further that a consequentialist lens allows clearer views of Fuller’s strengths in this regard, despite Fuller’s own resistance to consequentialism and despite consequentialism’s blindness to some of Fuller’s depth and texture. This thesis supplies a formula, although one intended only as a guide to thinking, not for actual computation, to drive judicial decision-making. The inputs into this formula are six values widely shared in the United States, modified by case-by-case salience. Kantian deontology strongly influences …

Strengthening The Home Front To Combat The Corona Pandemic: Al-Juwayni As A Model, Abeer Jassim Al Shehab Dr.

UAEU Law Journal

derived from the book "Al-Ghayathi", and this topic is "fortifying the home front".

The research aims to extrapolate the jurisprudence of Imam al-Juwayni in fortifying the home front through his book, and the consolidation of the term fortification of the home front of the state by studying its concept and legitimacy from the legal evidence, and its comprehensive aspects in Juwayni’s jurisprudence with regard to the Corona pandemic; Such as economic and health security, compared to the decisions of the State of Kuwait in the face of the Corona pandemic and its contemporary applications, coupled with a statement of the …

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …

"Bricolage" As Comparative Research Method For Critical Legislative Innovation, Marie-Claire Belleau

FIU Law Review

Comparative law incentivize imagination to create new solutions to social problems intrinsically linked to different parts of the world. It consists in the analysis of multiple legal solutions revealed by research. Meanwhile, the understanding of the documentation put forward is influenced by the social, cultural, linguistic, political, and economic context where it evolved in the first place. Consequently, the interpretation of those elements leads to varying results. In response to this reality, we offer a modest comparative methodology rooted in creativity inspired by the concept of “bricolage” for the purpose of legislative innovations. In light of some descriptive examples pertaining …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

Gender (Discrimination) Trouble, Katharine K. Baker

South Carolina Law Review

No abstract provided.

Decisionmaking In Patent Cases At The Federal Circuit, Jason Reinecke

Washington and Lee Law Review

This Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue. …

The (Still) Unexplored Possibilities Of A Poetics Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is …

Becoming A Doctrine, Allison Orr Larsen

Faculty Publications

On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …

Justice William J. Brennan Jr.'S Teleological Jurisprudence And What It Means For Constitutional Interpretation Today, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

Observers commonly think of the Warren and Roberts Courts as polar opposites in their modes of constitutional interpretation. But how different are their approaches really? To be sure, the values that underlie the jurisprudence of the Warren and Roberts Courts are dramatically different, but their methodologies for constitutional adjudication are similar in a crucial respect: both Courts frequently employ a teleological approach. They look, in other words, to ends outside of the law to determine the direction in which constitutional law should be heading.

To prove this point, this Article examines the methods and values Justice William J. Brennan Jr. …

Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re

Notre Dame Law Review Reflection

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin

William & Mary Bill of Rights Journal

In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

The Evolution Of Sodomy Decriminalization Jurisprudence In Transnational And Comparative Constitutional Perspective, Ayodeji Kamau Perrin

Faculty Scholarship

In this Article, I demonstrate that legal mobilization by activist litigants combined with a comparative methodological jurisprudence has been central to the “transnational legal process” of the generation and diffusion of the sodomy decriminalization norm since the 1950s. My analysis of the transnational comparative jurisprudence relies on a comprehensive legal survey of seven decades of decriminalization jurisprudence (1954–2022), primarily using successful cases. Although the scholarship on the well-known Dudgeon, Toonen, and NCGLE cases often asserts the influence that these cases had on subsequent domestic court constitutional jurisprudence, I suggest that it is the domestic privacy jurisprudence of lobbyists, …

A Handmaid’S Tale: Amy Coney Barrett, Originalism, And The Specter Of Religion, Calvin R. Coker, Joel L. Reed

Faculty and Staff Scholarship

In this essay, we analyze the Supreme Court confirmation hearings of Amy Coney Barrett to identify and explain the interaction between religion and jurisprudential philosophy. By tracing rhetorical scholarship on religion, politics, and the Supreme Court, we highlight tension engendered by both the members of the Senate Judiciary Committee and Barrett herself in locating her Catholicism as a desirable attribute for a nominee while at the same time espousing the importance of judicial objectivity. We suggest Barrett and her supporters on the committee invoked the judicial philosophy of originalism to allay this tension while occluding conversations about Barrett’s prior ideological …

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

The Forgotten Jurisprudence Of Parole And State Constitutional Doctrines Of Vagueness, Kristen Bell

Cardozo Law Review

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of …

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

Levels Of Free Speech Scrutiny, Alexander Tsesis

Indiana Law Journal

Inconsistencies abound throughout current exacting, strict, and most exacting scrutiny doctrines. Formalism also runs throughout recent cases that have opportunistically relied on the First Amendment in matters peripherally concerned with core principles of free speech. Jurisprudence that relies on the exacting scrutiny standard remains significantly under-theorized. The uncertainty creates doctrinal flux that shifts from case-to-case. The same unexplained malleability appears in the most exacting scrutiny jurisprudence. The Court, moreover, sometimes refers to these two standards as equivalent to strict scrutiny. On the other hand, during the last decade, and most recently in 2021, various opinions have also used exacting scrutiny …

Promoting Women’S Advancement In The Judiciary In The Midst Of Backlash: A Comparative Analysis Of Representation And Jurisprudence In Key Domestic And International Fora, Shruti Rana

Dickinson Law Review (2017-Present)

Women’s advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international …

The Future Of Property, Yael R. Lifshitz, Maytal Gilboa, Yotam Kaplan

Cardozo Law Review

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on …