Jurisprudence Commons^™

Machiavellian Jurisprudence: The United States Supreme Court's Doctrinal Approach To Political Speech Under The First Amendment, Garth Molander

Touro Law Review

No abstract provided.

Enhanced Punishment Under The Texas Hate Crimes Act: Politics, Panacea, Or Pathway To Hell., David Todd Smith

St. Mary's Law Journal

Nearly without exception, modern legislatures have responded to the reprehensible nature and detrimental social effects of hate crime by enacting laws specifically designed to punish the offender’s discriminatory animus. The term “hate crime” describes criminal conduct which is motivated by the offender’s bias or prejudice against another cognizable group. Although the reprehensible nature of a hate crime is often apparent from the facts of any given case, the repercussions of these offenses exceed the ignoble character of any one specific act. Texas has now joined the ranks of these jurisdictions by adopting legal provisions which authorize heightened penalties upon a …

The New Legal Hermeneutics, Francis J. Mootz Iii

Scholarly Works

Gregory Leyh has edited a volume of essays commissioned “to examine the intersections between contemporary legal theory and the foundations of interpretation” as explored in contemporary hermeneutics. The essays are diverse and multidisciplinary, but each sheds light on perplexing issues of legal interpretation that have exhausted commentators in recent years. The contributors share a broad agreement that we must reject the picture of law as an autonomous, insulated discourse and instead must regard legal discourse as one of many interrelated practices rooted in our character as interpretive beings.

Each contributor addressees the central concerns defined by the leading philosopher of …

Book Review Of The Constitution Besieged, By Howard Gillman, Edward A. Purcell Jr.

Other Publications

No abstract provided.

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

Feminist Jurisprudence And Free Speech Theory, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Self-Publication: Defamation Within The Employment Context., Howard J. Siegel

St. Mary's Law Journal

This Article reviews the rules and reasoning various jurisdictions have maintained in defamation actions supported by self-publication. This type of defamation action is commonly known as self-defamation. Before the law will hold the originator of a defamatory statement liable for defamation, publication of the defamatory comments must occur. Generally, defamatory communications are those communications which tend to injure one’s reputation. Publication normally occurs when one communicates the defamatory matter to “one other than the person defamed.” Originally, courts considered defamation actions valid only when the defamed person alleged that the originator directly published the statement to a third person. Under …

The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson

St. Mary's Law Journal

This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property …

Banning Motherhood: An Rx To Combat Child Abuse., Toni Driver Saunders

St. Mary's Law Journal

Abstract Forthcoming.

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and legitimation. …

Straightening The "Timber": Toward A New Paradigm Of International Law, Louis R. Beres

Vanderbilt Journal of Transnational Law

Immanuel Kant once remarked: " Out of timber so crooked as that from which man is made, nothing entirely straight can be built." Understood in terms of international law, this philosopher's wisdom points toward a far-reaching departure from traditional emphases on structures of global power and authority. Newly aware that structural alterations of international law are always epiphenomenal, ignoring root causes of international crimes in favor of their symptomatic expressions, we could craft from this departure a new and promising jurisprudence. Acknowledging that human transformations must lie at the heart of all world-order reform, we could build upon the knowledge …

Rethinking Rawls' Theory Of Liberty And Rights, James W. Nickel

Articles

No abstract provided.

The Sanist Lives Of Jurors In Death Penalty Cases: The Puzzling Role Of Mitigating Mental Disability Evidence, Michael L. Perlin

Articles & Chapters

No abstract provided.

Liberal Environmental Jurisprudence, David A. Westbrook

Journal Articles

No abstract provided.

The Irish Abortion Debate: Substantive Rights And Affecting Commerce Jurisprudential Models, Anne M. Hilbert

Vanderbilt Journal of Transnational Law

This Note examines the balance of power between the European Community and its Member States through the window of the Irish abortion debate. The framework for that debate has been shaped largely by two judicial bodies: the Irish judiciary and the European Court of Justice (ECJ), the judicial arm of the European Community. The Irish judiciary has approached the abortion question through an analysis of the content of substantive individual rights protected by the Irish Constitution. The ECJ, on the other hand, has addressed abortion from the standpoint of the European Community's goal of uninhibited commerce between Member States. These …

Deconstruction: The Road To A Derridian Cul-De-Sac Where "There Is No There There" And "There Is No About About For Anything To Be About", Arthur Austin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Democratic Credentials, Donald J. Herzog

Articles

We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …

Alienability Restrictions And The Enhancement Of Author Autonomy In United States And Continental Copyright Law, Neil Netanel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Response To Hittnger, Gerard V. Bradley

Journal Articles

No abstract provided.

The Concept Of Property In The Early Common Law, David J. Seipp

Faculty Scholarship

“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical …

Secular Fundamentalism, Paul F. Campos

Publications

No abstract provided.

Values, Pierre Schlag

Publications

No abstract provided.

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

The Untermensch As Ubermensch, Paul Campos

Publications

No abstract provided.

Rethinking The New Deal Court, Barry Cushman

Journal Articles

The story of the "switch in time" is among the most enduring chapters of our constitutional history. It is repeated every year in countless courses in government, history, and constitutional law at the high school, college, and graduate level. One of the great morality plays of American civics, it is a tale both celebratory and cautionary. Its plot is simple, there are good guys and bad guys, and the good guys prevail in the end. Although no comprehensive monograph has been devoted to the subject exclusively, the literature recounting the story is vast and remarkably homogenous-indeed, repetitive. In truncated, composite, …

Pilgrim Law, Robert E. Rodes

Journal Articles

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose you. breath climbing, …

The New Legal Hermeneutics, Francis J. Mootz, Iii

Vanderbilt Law Review

Incorporating the Continental philosophical tradition of hermeneutics into legal scholarship appears to be a project relevant only to a few jurisprudes locked away in the uppermost reaches of the ivory tower. Many scholars undoubtedly would argue that the tradition and focus of twentieth-century German philosophy is far removed from the troubling interpretive issues that arise in the American legal system, regardless of any interesting parallels or comparisons that might be drawn., From this perspective, the renewed attention to hermeneutical philosophy by legal scholars is viewed as just one of an increasing number of esoteric, intellectual cul-de-sacs that have diverged from …

Justice Byron White And The Argument That The Greater Includes The Lesser, Michael E. Herz

Articles

No abstract provided.

Response To Bert Van Roermund, Richard H. Weisberg

Articles

The article responds to Bert van Roermund's arguments about the relationship between law and literature, emphasizing that literature serves as a unique jurisprudential source when it mimetically imitates legal expression. The author argues that literature's value lies in its ability to capture the narrative structures of legal communication, particularly in genres like the novel or novella, which self-consciously replicate legal narrativity. This mimetic quality distinguishes literature from other forms of art and makes it uniquely relevant to legal theory.

French And American Judicial Opinions, Michael Wells

Scholarly Works

In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …