Jurisprudence Commons^™

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is …

Divergence And Convergence At The Intersection Of Property And Contract, Giuseppe Dari-Mattiacci, Carmine Guerriero

Faculty Scholarship

In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely …

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

Law's Halo And The Moral Machine, Bert I. Huang

Faculty Scholarship

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.

Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper

LLM Theses

This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.

Judicial Appointments In The United States And Australia -- A Comparison, Murray Tobias Qc

The University of Notre Dame Australia Law Review

No abstract provided.

The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles

Book Chapters

No abstract provided.

The Millennial Job Market: Maintaining Confidence In The Face Of Rejection, Eliza Boles

Law Library Faculty Scholarship

Published as a chapter in Millennial Leadership in Libraries edited by Ashley Krenelka Chase.

Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez

Barry Law Review

No abstract provided.

Dostoevsky As Juvenile Justice Advocate And Progenitor Of Therapeutic Jurisprudence, Amy D. Ronner

St. Thomas Law Review

In this Article, I explore this fixation with childhood suffering and suggest that Dostoevsky implicitly predicted the core tenets of a relatively new legal movement, called "therapeutic jurisprudence" ("TJ"), and I broach the question of why this matters. In an effort to provide an answer, I identify Dostoevsky as an early ombudsman for therapeutic juvenile justice and link him to the voiceless "polyphonic" voices in The Brothers Karamazov and to what I denominate the poly-personae of A Writer's Diary.

Therapeutic Jurisprudence, Professionalism, And "Spikes" For Lawyers, Shelley Kierstead

St. Thomas Law Review

This article will progress as follows. In Part 1, I discuss both the medical profession and the legal profession's challenges in relation to effective communication with patients and clients. I suggest that the medical profession's response, specifically as it relates to delivering bad news, has been more proactive and widespread than the legal profession's response. Part 2 briefly reviews research dealing with legal clients' emotional responses to different forms of communication, with a view supporting the argument that clarity of information, empathic responses to clients' reactions, and collaborative problem-solving are important elements of a professional relationship. Part 3 introduces the …

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division v. Smith …

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 Prospects For Change: The Question Of Justice In A Law & Society Framework, Michael W. Raphael

Graduate Student Publications and Research

What is the law and society framework and where has it gotten us? A student in a classroom might raise their hand and offer "understanding legal pluralism" as a possible answer. However, the conceptual problem with legal pluralism is the coexistence of potentially conflicting bases of justification. Given this, desiring to understand how the law shapes the structural underpinnings of whichever "legal" phenomena and its "ongoing transformation", is nevertheless an immense achievement that stops short of its underlying goal – the achievement of human dignity through human rights. For example, to talk about 'multi-stakeholder consultations' and other pithy phrases that …

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots And Sticks To Confront The Challenge Of Motivational Crowding-Out, Kristen Underhill

Faculty Scholarship

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for …

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Do You Know The Fair Market Value Of Your Property?: A Call To The Legislature To Revise Section 775.089, Florida Statutes, Governing Restitution, Adam M. Hapner

Barry Law Review

No abstract provided.

On The "Poverty Of Responsibility": A Study Of The History Of Child Protection Law And Jurisprudence In Nova Scotia, Ilana Luther

PhD Dissertations

This thesis presents a history of child protection law and jurisprudence in Nova Scotia. The thesis begins by examining the development of the first child protection statute in Canada, the Nova Scotia Prevention and Punishment of Wrongs to Children Act in 1882. The Act was developed amidst a climate of reform in late-19th century Halifax, at the urging of the Society for the Prevention of Cruelty to Animals. The Act, along with a number of other pieces of “domestic relations” legislation at the time, was focused on protecting children in poverty. With the passing of the Act, the legislature not …

A Warmer Welcome Home: The Need For Incorporating Therapeutic Jurisprudence In Reentry Courts, Kelsey Geary

St. Thomas Law Review

This comment will focus on one of the first established reentry courts-the Harlem Reentry Court ("HRC")-by evaluating its effectiveness with the basic principles of therapeutic jurisprudence. Section II provides general background on all the relevant topics: therapeutic jurisprudence, problem-solving courts, and reentry courts. Section III specifically focuses on the background, formation, and strategies of the HRC. Section IV gives an in-depth analysis of HRC's process, and how recognizing and further incorporating therapeutic practices could increase its success. Finally, Section V will conclude the argument by advocating for nationwide exposure and implementation of reentry courts for parolees around the country with …

Should Therapeutic Jurisprudence Be Used To Analyze Impacts Of Legal Process On Government, Carol L. Zeiner

St. Thomas Law Review

This article takes the controversial position that despite therapeutic jurisprudence's (sometimes referred to as "TJ") focus on the impact of laws and legal processes on the emotional and related physical well-being of human beings, there can be TJ-like impacts on government, at least in certain circumstances, that can be discovered by making a TJ analysis of the situation. It further contends that these TJ-like impacts on government ought to be examined for a number of important reasons: (1) they provide greater insights into therapeutic and antitherapeutic impacts on humans; (2) the deeper understandings gained through this analysis can then be …

The Contract: Between Contract Law And Criminal Jurisprudence, Roni Rosenberg

St. Thomas Law Review

The structure of the essay is as follows: Part I presents the general legal premise that enables the conviction of one who has caused harm by an omission in cases where the duty to act originates in a contractual obligation and highlights U.S. case law on this topic. Part II distinguishes between the duty to act that originates in a contract and a similar duty that is mentioned in case law and literature: the actual assumption of responsibility for a potential victim. Part III introduces various scenarios to assist in examining which contracts can serve as a source of a …

Preface: Policy-Oriented Jurisprudence And Contemporary American Legal Education, Tai-Heng Cheng

NYLS Law Review

No abstract provided.

Classroom Encounters

Maryland Carey Law

No abstract provided.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona

St. Thomas Law Review

This article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states.

The Law Of The Image And The Image Of The Law: Colonial Representations Of The Rule Of Law, Desmond Manderson

NYLS Law Review

No abstract provided.

Disclosure As Distribution, Jeremy N. Sheff

Faculty Publications

This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors' implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any …