Jurisprudence Commons^™

Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore

Faculty Publications By Year

No abstract provided.

Taking It To The Streets: Putting Discourse Analysis To The Service Of A Public Defender's Office, Clark D. Cunningham, Bonnie S. Mcelhinny

Faculty Publications By Year

No abstract provided.

Metaphors Matter: How Images Of Battle, Sports And Sex Shape The Adversary System, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Metaphors are not pretty figures of speech; they affect the way people within cultures perceive reality. It is therefore significant that the metaphors most commonly used for the adversary system center on war and sports. This tends to over-emphasize the competitive aspects of litigation and disguise opportunities for more cooperative behavior. This article collects and analyzes those metaphors, and discusses the reasons for their powerful hold on legal culture. It also considers some of the negative effects of the metaphorical system and speculates about whether we could find and nurture alternative metaphors.

Towards Equal Opportunity In Canada: New Approaches, Mixed Results Symposium - Human Rights In The Americas - Commentary., John Hucker

St. Mary's Law Journal

Abstract Forthcoming.

Chief Justice Calvert: Simple Rules Made Him Great In Memoriam., Jack Pope

St. Mary's Law Journal

Abstract Forthcoming.

Appellate Review Of Criminal Cases In Texas - Foreword Foreword., Charles F. Baird

St. Mary's Law Journal

Abstract Forthcoming.

Can A Twenty-First Century Texas Tolerate Its Nineteenth Century Judicial Selection Process Commentary., Charles Bleil

St. Mary's Law Journal

Judicial selection by popular election is no longer practical in Texas. Texans must question the adequacy of the Texas judicial selection process for the next century. The history of Texas has seen the implementation of various methods for selecting the judiciary. Initially, the creation of courts by the Republic of Texas’s Constitution required joint ballot of both houses of the Texas Congress to select judges. However, in 1876, Texas began holding elections for jurists by popular vote. This enactment was in response to the drafters’ desire to limit government intervention during the Reconstruction era. Although the suitability of popular election …

Desperately Seeking Science, Francis J. Mootz Iii

Scholarly Works

In this commentary I offer a lawyer’s view of what law and linguistics interdisciplinary studies might mean for legal practice, as well as a legal theorist’s view of what importance they may hold for jurisprudence. I do not pretend to have more than cursory knowledge about linguistics, and so my remarks about what linguistics scholars might gain from an interdisciplinary exchange necessarily will be brief general.

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

Criminal Fault As Per The Lamer Court And The Ghost Of William Mcintyre, Michael J. Bryant

Osgoode Hall Law Journal

Contrary to recent criticisms to the effect that the Supreme Court of Canada favours the rights of criminal defendants and shuns the interests of the community, the Lamer Court has in fact championed the moral requisites of the community in its constitutional jurisprudence on criminal fault. By viewing rights and responsibilities as inextricably linked, the Lamer Court implicitly borrows from natural law traditions espoused by the Dickson Court's most conspicuous dissenter on criminal fault issues-Mr. Justice William McIntyre. This article argues that the tradition or philosophy underlying criminal fault as per the Lamer Court contrasts with the individualist, rights-oriented tendency …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

A Unique And Different Subject Of Law, Alain Pottage

Cardozo Law Review

Might an idiom of love be instituted in law? This question is posed by Luce Irigaray's ethics of sexual difference, which, in the guise of a critique of law, depicts the semantic or symbolic structure of a law that articulates an ethical relation of love-not love as caritatis, but love as eros. This implausible association of love and law seeks to institute an immediate and idiomatic relation within the axiopoietic order of law. Irigaray's J'aime d toi prescribes a set of basic rights which law-in its role as cultural tutor-might institute as the coordinates of a new model …

Anti-Intellectualism, Pierre Schlag

Cardozo Law Review

There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is and saying it, of course, in a way that conforms with the law itself.

The Other Dimension Of Law, Pierre Legendre

Cardozo Law Review

What kind of a questioning would make it possible for psychoanalysis to become theoretically useful for jurists? How could such a questioning have an effect on the practice of law? In the same measure, is it theoretically plausible for psychoanalysts, attached as they are to their own casuistry, to interrogate the law? What must be recognized from the start, if this questioning is to be more than superficial, is that the intellectual and social dogmas of today are obstacles to the liberty of thought [esprit].

Power Without Parents: Juvenile Justice In A Postmodern Society, Jonathan Simon

Cardozo Law Review

It is tempting at times to speak of a general crisis of childhood in America. We hear and read of record numbers of children living in poverty and unprecedented levels of violence against children and adolescents. With astounding frequency, stories emerge of child abuse in the nation's churches, schools, and day-care centers. But this characterization of a general crisis leaps over the specific contexts in which these disturbing images are arising and mistakes the democracy of the daily news for a common fate in America. Such a discussion also risks ignoring the specific technologies of power that are in play, …

For The Love Of Lacan, Jacques Derrida

Cardozo Law Review

What wouldn't Lacan have said!

What won't he have said!

This is not a question, it is an exclamation: to get my voice right, to find the appropriate tone, before beginning to try out this idiomatic conjunction of negation, denial [denegation], conditional and future in the past, my hypothesis being that these grammars, now in succession, now simultaneously, play the role of a screen and of a mirror in the modalities of the with, as they do in the modalities of the since [depuis] that will have determined Lacan's relationship to the philosophers-to certain philosophers. These few reflections on temporal …

Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Home Equity Reform In Texas Forum., Jerry Patterson

St. Mary's Law Journal

Texas citizens should vote on home equity reform to be able to decide for themselves whether they desire the benefits of home equity borrowing. Texas is the only state in the nation that prohibits homeowners from using their home equity as they see fit such as to educate their children, to start or expand small businesses, or to enjoy their retirement years. Critics to home equity reform in Texas do not fully understand the scope of the amendments or the benefits that come with reform. The myth that equity loans would trigger an increase in foreclosure rates cannot be documented …

The Texas Homestead: The Last Bulwark Of Liberty Forum., Henry B. Gonzalez

St. Mary's Law Journal

For more than 155 years Texans have adamantly supported the principle that the fundamental need for shelter justifies strict constitutional protection of homes from creditors in all but a few situations. This Article discusses where homestead protection came from and why it should not be lightly discarded. The Texas Constitution contains many rights and liberties for the protection and benefit of the state’s citizens. Unique among these treasured liberties is the protection of a person’s homestead from forced sale or foreclosure by creditors. A group of bankers and other financiers—for whom a homestead is nothing more than collateral and a …

The Spoliation Tort: An Approach To Underlying Principles., Steffen Nolte

St. Mary's Law Journal

Abstract Forthcoming.

J.E.B. V. Alabama Ex Rel. T.B.: Excellent Ideology, Ineffective Implementation., Nancy J. Cutler

St. Mary's Law Journal

Abstract Forthcoming.

International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe

St. Mary's Law Journal

This Article posits that the increase of tariff arrangements, like the Generalized System of Preferences (GSP), is evidence of the “hardening” of a body of international trade-preference law. It contends that the law of trade preferences is widely practiced in international affairs and the developed nations which terminate all trade preferences for developing countries most likely engage in illegal conduct under international law. Classical international law principally consisted of the law between nations and an international law of trade preferences in any form was unthinkable. Thus, neither international cooperation nor a duty for developed countries to assist developing countries is …

The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage

St. Mary's Law Journal

In Holder v. Hall, the Court held the size of a government body is not subject to a vote dilution challenge under Section 2 of the Voting Rights Act of 1965. The Act consists of two primary components, Sections 2 and 5, designed to eliminate and prevent subtle voting practices and procedures utilized to obstruct minority voter participation. Section 5 requires states with a history of discriminatory voting practices to obtain federal preclearance before changing a voting standard, practice, or procedure. Section 2 addresses the existing methods utilized to deny or abridge a citizen’s right to vote.  In Holder, the …

Flow Control Ordinances That Require Disposal Of Trash At A Designated Facility Violate The Dormant Commerce Clause., Laura Gabrysch

St. Mary's Law Journal

In C & A Carbone, Inc. v. Town of Clarkstown, the Court held flow control ordinances that require disposal of trash at a designated facility violate the Dormant Commerce Clause. In the absence of congressional action, the Court has recognized—the Dormant Commerce Clause—restrictions on states’ ability to regulate interstate commerce. The Dormant Commerce Clause doctrine does not emanate directly from the Constitution, but instead flows from the body of Commerce Clause jurisprudence that has gained legitimacy throughout the years. In Carbone, the Court elevated the economic interests of one local waste processor over Clarkstown’s environmental and public protection. This type …

Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick

St. Mary's Law Journal

In Richardson v. State, the Texas Court of Criminal Appeals granted Richardson’s second petition for discretionary review to determine whether law enforcement’s use of a pen register constitutes a search. The use of a pen register may be a search within the purview of Article I, Section 9 of the Texas Constitution. Courts use the reasonable-expectation-of-privacy test, from Katz v. United States, to determine whether a search has occurred under the Fourth Amendment. In Richardson, the Texas Court of Criminal Appeals reviewed whether the use of a pen register equates to a search despite the U.S. Supreme Court’s determination in …

A Settlement Offer Above Policy Limits Does Not Trigger An Insurer's Stowers Duty To Act Reasonably., James Martin Truss

St. Mary's Law Journal

Abstract Forthcoming.

The Women's Convention And The Equal Protection Clause Symposium - Human Rights In The Americas., Michael J. Corbera

St. Mary's Law Journal

This Article addresses whether the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because international treaties such as the Women’s Convention carry the same weight and are subject to the same treatment as U.S. federal law, the constitutionality of the Convention is dictated by U.S. jurisprudence. Part II of this Article outlines and discusses the origin and content of the Women’s Convention. Part III contains a historical review of gender jurisprudence in the United States, with particular emphasis on …

Did We Treaty Away Ker-Frisbie Symposium - Human Rights In The Americas., Timothy D. Rudy

St. Mary's Law Journal

This Article explores whether U.S. ratification of the International Covenant on Civil and Political Rights (Civil and Political Covenant) provides the American judiciary with reason to jettison the Ker-Frisbie doctrine. If the United States does not forego use of the Ker-Frisbie doctrine the country will violate its international obligations arising from a major human rights treaty. Part II discusses the customary norm of international law which forbids—and the American rule which permits—forcible abductions overseas. It also reviews whether extraterritorial abductions violate customary international law. Part III discusses applicability of the Civil and Political Covenant to the Ker-Frisbie doctrine and details …

Trying To Make Ends Meet: Reconciling The Law And Practice Of Human Rights Amnesties Symposium - Human Rights In The Americas - Commentary., Robert O. Weiner

St. Mary's Law Journal

The problem of amnesty for widespread human rights violations in the Americas illustrates the credibility gap in public international law. This Commentary reviews applicable standards and attempts to identify a minimum state response to past human rights violations. It also examines the question of amnesties, offers certain legal interpretations, and presents some criteria for an amnesty framework which might be reconcilable with the state’s international obligations. This Commentary’s aim is not to suggest amnesties are a proper response to the problem of past human rights abuses, however, it does acknowledge amnesties have so far been the most common response. It …

In Re Oluloro: Risk Of Female Genital Mutilation As Extreme Hardship In Immigration Proceedings Symposium - Human Rights In The Americas - Recent Development., Patricia Dysart Rudloff

St. Mary's Law Journal

On March 23, 1994, in In re Oluloro, Immigration Judge Kendall Warren’s decision indicated the United States Immigration and Naturalization Service (INS) should consider human rights abuses directed at women. The overriding concern was the possibility that two young U.S. girls would suffer female genital mutilation (FGM) if the INS deported their mother to Nigeria. In reaching the decision to suspend the mother’s deportation, Judge Warren condemned FGM as “cruel and serv[ing] no known medical purpose.” Judge Warren ruled the practice presented an extreme hardship for the girls. Unfortunately, the court’s ruling has no precedential value because the INS did …