Jurisprudence Commons^™

The Crime Of Aggression: Its Nature, The Leadership Clause, And The Paradox Of Immunity, David Luban

Georgetown Law Faculty Publications and Other Works

The paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.

Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals.

In particular, modern doctrine might provide progressives answers to three questions:

1. Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional?
2. Are legacy admissions to state run institutions …

The (Still) Unexplored Possibilities Of A Poetics Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is …

Loper Bright In A Larger Interpretive Perspective: Is This Justice Scalia’S Court Anymore?, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Loper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are …

The Catholic Modernity Of Pope Benedict Xvi: Healthy Secularity And Christian Jurisprudence, Zachary R. Calo

Scholarly Works

This article examines the concept of healthy secularity in the thought of Pope Benedict XVI. In developing the idea of healthy secularity, Benedict builds upon longstanding themes in Catholic social thought while also provoking a deeper engagement with western modernity. Rather than placing Christianity and the secular in an oppositional framework, Benedict positions Christianity as the foundation of an authentic secular order. In so doing, he opens up new modes of critical engagement with western legal and political thought. Yet, while the concept offers a creative theological method for addressing contemporary issues, it depends for its realisation on vanishing cultural …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Why Equity Follows The Law, Adam J. Macleod

Faculty Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Reasons For Interpretation, Francisco J. Urbina

Journal Articles

What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional, and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. This is the "normative choice thesis." This Article formulates the normative choice thesis and offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reason cannot justify interpretive choice. In doing this, this Article also …

St. John Henry Newman's Development Of Doctrine And Law: Some Preliminary Notes And Questions, Jeffrey A. Pojanowski

Journal Articles

This essay, presented at a conference at the Catholic University of America's Columbus School of Law, considers how Newman's theory of development of church doctrine can illuminate the development of human law. The argument, which focuses primarily on constitutional law and tradition, identifies promising parallels but also offers cautionary notes about straightforward analogies between the two bodies of doctrine.

Ways Of Explaining Law, Dan Priel

Articles & Book Chapters

No abstract provided.

Value Judgments In Judicial Reasoning, And The Instability Of The Fact-Law Distinction, Stephen A. Simon

University of Cincinnati Law Review

No abstract provided.

Voluntary Dismissals, Jurisdiction & Waiving Appellate Review, Bryan Lammon

University of Cincinnati Law Review

Litigants have long tried to manufacture a final, appealable decision by voluntarily dismissing their claims after an adverse interlocutory decision. Recently—and especially since the Supreme Court’s decision in Microsoft Corp. v. Baker—courts have thought that these dismissals created a jurisdictional problem. Either the voluntary dismissal did not produce a final decision, or the dismissal extinguished Article III jurisdiction. But the problem with these appeals is not jurisdictional. It’s waiver. A voluntary dismissal after an adverse interlocutory decision waives the right to appellate review. This Article shows the flaws in the jurisdictional rejection of this kind of manufactured finality and …

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Request For An Advisory Opinion On Climate Emergency And Human Rights By The Republic Of Colombia And The Republic Of Chile, Diane A. Desierto, Francisco Urbina, Aníbal Pérez-Liñán, Nicolas Buitrago Rey, Faisal Yamil Meneses, Garrett Pacholl

Court Briefs

The Notre Dame Law School Human Rights Clinic (NDLS GHRC) in collaboration with the Notre Dame Reparations Design and Compliance Lab (ND Reparations Lab)

From the Introduction

Noting the request of the Republic of Colombia and the Republic of Chile for this Honorable Court to "provide guidance towards human rights-based solutions with an intersectional perspective," this Expert Opinion deliberately draws on interdisciplinary methods that weave international law, international human rights law, jurisprudence, quantitative tools of political science, and qualitative tools of social science research to assist this Honorable Court in its task of addressing the manifold questions brought by the …

Common Law Statutes, Charles W. Tyler

Notre Dame Law Review

The defining feature of a “common law statute” is that it resists standard methods of statutory interpretation. The category includes such important federal statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of common law statutes, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under them. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts today—i.e., rules that jurisdictions generally have in common. …

Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re

Notre Dame Law Review Reflection

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …

Congressional Power To Institute A Wealth Tax, Will Clark

Notre Dame Law Review Reflection

Over the last few years, several high-profile politicians have pushed to impose a federal “wealth tax.” For example, a recent bill introduced in the Senate would create a two percent tax on the value of assets between fifty million and one billion dollars, plus a higher percentage on wealth valued over one billion dollars. The proponents of the tax argue that it would reduce the growing wealth inequality in the United States, while opponents say that it would disincentivize investment in the American economy.

Policy arguments, however, are only relevant if the federal government has the authority to institute such …

A Textualist Defense Of A New Collateral Order Doctrine, Adam Reed Moore

Notre Dame Law Review Reflection

As a general rule, federal appellate courts have jurisdiction over “final decisions.” Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward. That is because the Court has left the statutory text by the wayside. The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule. This rule would allow appeals from final judgments only. But this alternative is not the product of close textual analysis. …

An Originalist Approach To Prospective Overruling, John O. Mcginnis, Michael Rappaport

Notre Dame Law Review

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would …

Midstream Contract Interpretation, Alan Schwartz, Simone M. Sepe

Notre Dame Law Review

This Article makes two original contributions to the contract interpretation and renegotiation literatures. First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract. Parties may predict differently how the applicable court will weigh facts, apply legal rules, or interpret contracts. When parties disagree regarding the court’s interpretive practices, they will assess their expected litigation payoffs differently. This could cause parties to litigate transactions rather than complete them, even when the parties agree on the economic parameters. Litigators know that differing predictions about what a court will do can impede …

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos M. Vázquez

Notre Dame Law Review

“[T]he legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . . [T]he judicial department may receive from the Legislature the power of construing every . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: the federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the …

State Officers And The Enforcement Of Federal Law, Charlie Nugent

Notre Dame Law Review

There is an unresolved question whether the state enforcement of federal law is compatible with the structure of government that the Constitution creates for the United States. Commentators have advanced two diametrically opposed positions to justify the state enforcement of federal law. The “federal delegation” position maintains that federal executive power is the only executive power that can perform federal executive functions. Proponents of this position argue that, when state officers enforce federal law, they exercise federal executive power at the pleasure of the President. This federal delegation position, however, has not been adequately defended. There is no clear reason …

The Jurisprudence Of Justice Gorsuch And Future Efforts To Address Climate Change, Rachel Rothschild

Michigan Law Review Online

Following the Trump administration’s significant reshaping of the federal judiciary and a number of blockbuster Supreme Court cases during the October 2021 and October 2022 Terms, environmental law is shifting rapidly toward a more restrictive vision of federal regulation. Justice Gorsuch has been clamoring for such a revolution throughout his time on the bench. Since joining the Supreme Court, he has not only provided a crucial vote for limiting the Environmental Protection Agency (EPA)’s regulatory authority, but also advanced a radical vision of the separation of powers that would drastically alter our modern system of administrative governance. In several of …

Following The Science: Judicial Review Of Climate Science, Maxine Sugarman

Washington Law Review

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …

Institutional Liability For Sexual Violence In Prisons Based On Theaided-By-Agency Theory, Tori Klevan

Fordham Law Review

Sexual assault perpetrated by correctional officers in prisons and jails is a pervasive problem in women’s correctional facilities. However, victims who choose to pursue a civil action rarely recover damages for their injuries because our legal system fails to provide adequate options for relief. This failure leaves victims uncompensated and disincentivizes correctional institutions from implementing effective preventative measures. Part of the reason for this failure is that most U.S. courts refuse to hold employers liable for sexual violence committed by their employees. They find that employers cannot be held liable for the tortious conduct of their employees unless the conduct …

Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore

Faculty Scholarship

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. Justice Alito repeated this argument in Dobbs v. Jackson Women’s Health. Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption …

Human Dimensions In The Jurisprudence Of The Malikis Human Dimensions Under Maliki Jurisprudence: Analytical Study Of Applied Models, Baraa A. Alyoussef

UAEU Law Journal

The research aims to take care of the human dimensions and elicit them from jurisprudential texts with their evidence and causes that were singled out by the Maliki jurists in their books according to a descriptive, inductive, analytical, and deductive approach, in order to show the greatness of Islamic legislation, its sophistication, and its consideration of people’s conditions and circumstances, which leads to their happiness and relieves them of embarrassment and hardship in line with the purposes of the Shariah. .

The study included a statement of the concept of the human dimension and its visibility in some of the …

Peculiarities Of The Moroccan Endowments Code Industry, Ridoine Tribak Bakhat Dr.

UAEU Law Journal

field of endowment (waqf), especially by focusing on the endowment code as a model for contemporary endowment legislation. The study concluded that the legislation in the field of endowment (waqf) knows a set of important peculiarities that have been invoked since the thought of the development of the code and continued with its various stations, as well as during the legislative procedure that was approached, and this stems mainly from the privacy and independence of endowment provisions, and their connection to the Islamic legislative system and its sources, that system From which the Emirate of the Faithful derives its roots …