Jurisprudence Commons^™

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

The Life And Legal Legacy Of Justice Steven L. Zinter, Neil Fulton

Faculty Publications

Justice Steven L. Zinter was a vital part of South Dakota's legal landscape for decades. As a private practitioner, circuit court judge, supreme court justice, and in other official capacities, he forged a powerful legacy in South Dakota. Over the course of his time he worked on cases large and small in many areas of law. He was recognized as a brilliant legal mind, precise writer, and careful thinker. It is a challenge to capture the breadth and depth of such a career. This article takes a look at his personal formation, his legal work in several settings, and how …

Global Energy Poverty: The Relevance Of Faith And Reason, Lakshman Guruswamy

Publications

The challenge of energy poverty (EP) primarily confronts the least developed countries (LDCs) of the world, located in Africa and Asia, but is also prevalent within segments of more advanced developing countries in Asia. This article will first delineate the nature of global energy poverty that results in the premature deaths of millions of people and leads to pervasive sickness among many more millions. The article will next sketch the legal and political responses to this problem that have generally applied principles of sustainable development (SD) and the seventeen Sustainable Development Goals (SDGs) of 2015 adopted by the General Assembly …

The Integrative Effects Of Global Legal Pluralism, Monica Hakimi

Faculty Scholarship

International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …

Stare Decisis On Death Row: How The Florida Supreme Court Has Abandoned Stare Decisis Since 2020

Florida A & M University Law Review

This comment will analyze how the Florida Supreme Court has disregarded the doctrine of Stare Decisis throughout 2020 and the consequences of the four significant changes to Florida’s death penalty law. Part II discusses how the doctrine of stare decisis is defined and its origins. Part III addresses the need for certainty and reliability of the law for its survival as an institution. Part IV discusses how the court’s new composition has led the court to overturn precedent in death penalty law. Part V delves into the four major changes that the Florida Supreme Court has made relating to the …

Intersectionality In The Opioid Crisis: Anti-Black Racism And White, Pregnant, Opioid Users, Craig Konnoth

Publications

No abstract provided.

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Confessions, Convictions And Controversy: An Examination Of False Confessions Leading To Wrongful Convictions In The United States Throughout History, Kirandeep Kaur

Journal of Race, Gender, and Ethnicity

No abstract provided.

How Circuits Can Fix Their Splits, Wyatt G. Sassman

Marquette Law Review

The desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts …

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

Can The Pursuit Of Truth Reconcile With The Principle Of Minimizing False Convictions?, Doron Menashe

Cardozo Journal of Conflict Resolution

No abstract provided.

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Cooley’S Constitutional Limitations And Constitutional Originalism, Lawrence B. Solum

Faculty Scholarship

Thomas Cooley’s A Treatise on The Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union was the most influential treatise of constitutional law in the second half of the nineteenth century. This Essay explores the ideas expressed in Cooley’s treatise in light of contemporary originalist constitutional theory. In many ways, Constitutional Limitations anticipated some of the key moves made by contemporary public meaning originalists, including the interpretation-construction distinction and the idea that ordinary meaning, and not technical meaning, is the baseline for constitutional interpretation.

Conceptualizing Appealability: Resisting The Supreme Court's Categorical Imperative, Richard L. Heppner Jr.

Law Faculty Publications

This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only "classical categories" based on logical definitions, but also "conceptual categories" based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process-first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step.

This paper makes two contributions to the study of federal appealability. …

Goodbye To Concurring Opinions, Meg Penrose

Faculty Scholarship

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors.The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common that …

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

The Role Of State And Federal Law In Energy Condemnations, Stewart E. Sterk

Articles

When an energy provider condemns fee interests or easements to permit construction of transmission lines, what roles do state and federal law play in determining the "just compensation" available to affected landowners? That question has arisen in a number of different factual contexts. Usually, condemnors seek to avoid state law rules that provide for compensation beyond what they believe represents the market value of the property they seek to acquire. For instance, condemnors may seek an offset for benefits the condemnation generates for neighboring land owned by the condemnee. Condemnors may also seek to avoid state rules that entitle condemnees …

The Contributions Of William Funk To American Constitutional Law Scholarship, William D. Araiza

Lewis & Clark Law Review

This Essay discusses the contributions of Professor William Funk to American constitutional law scholarship on the occasion of a festschrift held in his honor at Lewis & Clark Law School on April 5, 2019. Reviewing Professor Funk’s varied scholarship reveals his careful, attentive, and even-handed approach. The Essay concludes by comparing Professor Funk’s style of constitutional law scholarship to the approach to substantive due process embraced by Justice David Souter in his classic concurring opinion in Washington v. Glucksberg. Just like Justice Souter’s analysis in Glucksberg, Professor Funk’s scholarship seeks justification for rules in the results they generate, rejects arid …

The 2019 Higgins Distinguished Visitor Lecture: The Subversive Side Of Textualism And Original Intent, Donald B. Ayer

Lewis & Clark Law Review

The Lorene Sails Higgins Charitable Trust provides the Lewis & Clark community access to leading legal scholars from around the world. Each year, the campus is graced with a visitor renowned in their field whose stay is funded by a grant from the trust. This lecture, given by the former Deputy Attorney General and Principal Deputy Solicitor General Donald B. Ayer during the course of his visit, discussed the changes in American legal thinking during his career.

John Marshall’S Constitution: Methodological Pluralism And Second-Order Ipse Dixit In Constitutional Adjudication, D.A. Jeremy Telman

Lewis & Clark Law Review

This Article provides a comprehensive treatment of the constitutional jurispru- dence of the Marshall Court (1801–1835), addressing its relationship to con- temporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reac- tion against the perceived excesses of the Warren and Burger Courts. Original- ists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudi- cation in the United States has always been originalist. This Article …

Hyperreal: Law And The Interpretation Of Visual Media, Amy L. Landers

Kentucky Law Journal

No abstract provided.

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

The “Step-Child Of Scholarly Investigation”: Preliminary Observations About The Origins Of Academic Jewish Law Scholarship, David Hollander

Touro Law Review

No abstract provided.

The Legal Significance Of Custom In The Halakhic Jurisprudence Of Rabbi Yechiel Mikhel Epstein’S Arukh Hashulchan, Shlomo C. Pill, Michael J. Broyde

Touro Law Review

No abstract provided.

Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack

Touro Law Review

No abstract provided.

Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori

Touro Law Review

No abstract provided.