Jurisprudence Commons^™

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

Articles

No abstract provided.

The Exclusionary Rule Redux - Again, Lloyd L. Weinreb

Fordham Urban Law Journal

The exclusionary rule itself is not very complicated: if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision, however, has been freighted with innumerable epicycles, and epicycles on epicycles ever since it was made part of Fourth Amendment jurisprudence. The exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness. It survives, but its reach is uncertain, its rational questioned, and its value doubted. Hudson v. Michigan …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

The Person In Law, The Number In Math: Improved Analysis Of The Subject As Foundation For A Noveau Régime , Orlando I. Martínez-García

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

Journal Articles

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform, David Marcus

Georgia Law Review

Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This Article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

Justice In Time, Robert C. Hockett

Cornell Law Faculty Publications

Challenges raised by the subject of intergenerational justice seem often to be thought almost uniquely intractable. In particular, apparent conflicts between the core values of impartiality and efficiency raised by a large and still growing number of intertemporal impossibility results derived by Koopmans, Diamond, Basu & Mitra, and others have been taken to foreclose fruitful policy assessment done with a view to the distant future.

This Essay aims to dispel the sense of bewilderment, pessimism and attendant paralysis that afflicts intertemporal justice assessment. It works toward that end by demonstrating that the most vexing puzzles raised by questions of intergenerational …

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

Scholarly Works

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …

Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan

Working Paper Series

This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …

Emotional Common Sense As Constitutional Law, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about the emotions. A species of common sense, it seems obvious and universal to …

Judicial Adherence To A Minimum Core Approach To Socio-Economic Rights – A Comparative Perspective, Joie Chowdhury

Cornell Law School Inter-University Graduate Student Conference Papers

Today’s world is witness to extraordinary inequality and the most desperate poverty. Millions of people across the world have no access to adequate food or water, basic health care or minimum levels of education. There are many avenues through which to approach the issue of improving socio-economic conditions. Courts, especially recently, have in certain countries, been seeking to ameliorate these conditions, to some extent, through the means of socio-economic rights adjudication.

For courts to effectively empower people to realize their socio-economic rights, attention to implementation of judgments is essential. A strong normative base for such judgments is just as crucial, …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

Comparative Constitutional Epics, Penelope J. Pether

Working Paper Series

This essay takes up Robert Cover’s account, in “Nomos and Narrative” of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison’s Beloved, David Malouf’s An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a …

Cautionary Tales, Penelope J. Pether

Working Paper Series

“This is a review essay of Nan Seuffert’s Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, 2006), a critical, interdisciplinary study of the construction of national identity of Aotearoa New Zealand, which unearths the raced and gendered constitution of this postcolonial nation state.”

Extraordinary Rendition: A Wrong Without A Right, Robert Johnson

University of Richmond Law Review

No abstract provided.

The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell

Faculty Working Papers

In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the …

Legal Taxonomy, Emily Sherwin

Cornell Law Faculty Publications

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The Death Of The American Trial, Robert P. Burns

Faculty Working Papers

This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.

Abortion As Betrayal, Richard Stith

Law Faculty Publications

Abortion is worse than ordinary murder, principally because it involves the betrayal of a dependent by a natural guardian. Furthermore, abortion is emblematic of wider lethal betrayals of radically dependent persons. All these betrayals are rationalized precisely by the victims’ lack of autonomy-based dignity. Christianity counters by affirming the concern and respect due to those who helplessly suffer worldly disdain.

Blakely, Apprendi, Booker, Begay, And Santos: Judicial Minimalism And The U.S. Supreme Court's Ill-Conceived Attempts At A Rational Jurisprudence, E.J. Yera

St. Thomas Law Review

The approach the Court has taken in the cases discussed herein has regrettably resulted in a waste of judicial, prosecutorial and defense resources at a time when the United States has more individuals in prison than any other industrialized nation in the world. More importantly, these decisions have left the law in a state of deliberate confusion and have harmed the individual defendants, many of whom are minorities whose rights are already fragile. The Court's unfinished decisions have also created a state of uncertainty that has been equally damaging to the victims of crime and to the integrity of the …

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Foreword: Poverty Law Issue, Ann Juergens

Faculty Scholarship

This Poverty Law Issue provides testimony as to why and how the legal profession, the government, and society can better provide justice for people of small means. Overall, this Poverty Law Issue contributes to understanding how we may ensure that the difficulty of poverty borne by our fellow citizens does not become compounded by injustice. For when justice is compromised for one group, its integrity as a whole may rightly be questioned.

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Proving Preemption By Proving Exemption: The Quandary Of The National Securities Market Improvement Act, Jeffrey D. Chadwick

University of Richmond Law Review

No abstract provided.

How Queer Theory Makes Neoliberalism Sexy, Martha T. Mccluskey

Contributions to Books

Published in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero, eds.

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian Mccall

Faculty Articles

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.