Jurisprudence Commons^™

An Improved Analytical Framework For The Official Acknowledgment Doctrine: A Broader Interpretation Of “Through An Official And Documented Disclosure”, Jessica Fisher

NYLS Law Review

No abstract provided.

Mr. Sunstein's Neighborhood: Won't You Be Our Co-Author?, Tracey E. George, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In Six Degrees of Cass Sunstein: Collaboration Networks in Legal Scholarship (11 Green Bag 2d 19 (2007)) we began the study of the collaboration network in legal academia. We concluded that the central figure in the network was Professor Cass Sunstein of Harvard Law School and proceeded to catalogue all of his myriad co-authors (so-called Sunstein 1's) and their co-authors (Sunstein 2's). In this small note we update that catalogue as of August 2008 and take the opportunity to reflect on this project and its methodology.

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

Publications

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see …

Roscoe Pound, Melvin Belli, And The Personal-Injury Bar: The Tale Of An Odd Coupling, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of …

Reasons: Practical And Adaptive, Joseph Raz

Faculty Scholarship

I will consider some of the differences between epistemic reasons and reasons for action, and use these differences to illuminate a major division between types of normative reasons, which I will call ‘adaptive’ and ‘practical’ reasons. A few clarifications of some aspects of the concept of epistemic reasons will lead to a distinction between standard and non-standard reasons (section 1). Some differences between epistemic and practical reasons will be described and explained in section 2, paving the way to generalising the contrast and explaining the difference between adaptive and practical reasons (section 3). sections 4 and 5 further explain and …

The Limits Of Advocacy, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that the parties have overlooked or ignored—on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Mapp v. Ohio, 367 U.S. …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Comments On Roger Cotterrell's Essay, 'The Struggle For Law: Some Dilemmas Of Cultural Legality', Robin West

Georgetown Law Faculty Publications and Other Works

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thank you to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law. I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

Publications

In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every …

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Cornell Law Faculty Publications

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

On Writing: The Essay In Jurisprudence, Claire Grant

Journal of Legal Education

No abstract provided.

From The Editors, Mark Tushnet, Carrie Menkel Meadow

Journal of Legal Education

No abstract provided.

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

Public Law, Private Law, And Legal Science, Chaim Saiman

Working Paper Series

This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by …

Cafa Judicata: A Tale Of Waste And Politics, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005.

CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions …

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy …

“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan

Working Paper Series

This review essay of Mary Ann Glendon's Traditions in Turmoil (2006) explores such topics as tradition, moral discourse, human rights, subsidiarity, natural law, the common good, civil society, and constitutional and statutory interpretation. In doing so, it provides an introduction both to Catholic social thought and to the thought of Bernard Lonergan.

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

The Force Of Law: The Role Of Coercion In Legal Norms, Ekow N. Yankah

University of Richmond Law Review

No abstract provided.

The Tropicalization Of Proportionality Balancing: The Colombian And Mexican Examples, Luisa Conesa

Cornell Law School Inter-University Graduate Student Conference Papers

In “The Tropicalization of Proportionality Balancing: the Colombian and Mexican Examples” the author analyzes how the German based proportionality balancing test was exported to Latin America, by studying the Colombian Constitutional Court and the Mexican Supreme Court. This work is guided by the following questions: what is proportionality balancing? How has it been used by the Colombian and Mexican jurisprudences and what are its influences? Do the Courts cite other jurisdictions when using the test? Have they imported a traditional European test? Or, have they “tropicalized” it?

The study of the Latin American examples leads to the conclusion that the …

Reviving The Subject Of Law, Penelope J. Pether

Working Paper Series

This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, …

Hustle And Flow: A Social Network Analysis Of The American Federal Judiciary, Daniel Martin Katz, Derek Stafford

Law & Economics Working Papers Archive: 2003-2009

Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure—operationalized as the professional and social connections between judicial actors—partially directs outcomes in the hierarchical federal judiciary.

Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its nature. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely …

Government Lawyers In The Liberal State, W. Bradley Wendel

Cornell Law Faculty Working Papers

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …

Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel

All Papers

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …

Contested Morality: Judge Posner On Infanticide, Slavery, Suttee, Female Genital Mutilation, And The Holocaust, Anthony D'Amato

Faculty Working Papers

Judge Richard Posner locates his moral theory between moral absolutism and the "anything goes" kind of moral relativism. He analyzes whether five contested topics are subject to useful moral debate: infanticide, slavery, suttee, female genital mutilation, and the Holocaust. Each topic presents a different perspective on his own moral theory. But each one fails in a different way to place his own moral theory on a sound footing.

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

From The Periphery To The Center? The Evolving Wto Jurisprudence On Transparency And Good Governance, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision …

The Evangelical Debate Over Climate Change, John Copeland Nagle

Journal Articles

In 2006, a group of prominent evangelicals issued a statement calling for a greater response to climate change. Soon thereafter, another group of prominent evangelicals responded with their own statement urging caution before taking any action against climate change. This division among evangelicals concerning climate change may be surprising for a community that is usually portrayed as homogenous and as indifferent or hostile toward environmental regulation. Yet there is an ongoing debate among evangelicals regarding the severity of climate change, its causes, and the appropriate response. Why? The answer to this question is important because of the increasing prominence of …