Legal Theory Commons^™

A Formative Approach In Applying A Meta- Ethnography Across The Qualitative Professional Criminal Literature, Douglas J. Wholl, Wilson R. Palacios, John K. Cochran, Christine S. Sellers

Qualitative Criminology (QC)

"This paper aims to introduce and teach readers step-by-step how to conduct a meta-ethnography within the field of criminology. In order to accomplish this, we purposefully selected a very narrow area of study, professional criminals as presented in well-known classic criminological monographs and then further restricted it to a rational choice perspective, a theoretical rubric easily addressed via the meta-ethnography. These limiting decisions were done so that readers would not get lost in the substance of the meta-ethnography. A search of qualitative research monographs and related online bibliographic databases identified a total of 32 research monographs, 6 of which met …

Examining The Decision-Making Processes Of Sex Tourists Using On-Line Data, Thomas J. Holt, April M. Zeoli, Kathleen Bohrer

Qualitative Criminology (QC)

"Criminological research has increasingly focused on the decision- making processes of offenders in order to better understand criminal behavior as a whole. A small body of research has considered how the bounds or limits of offender decision-making are shaped by various factors. In addition, limited research has considered the role of preference and bounded rationality in crimes where long-range planning and careful consideration of options are possible. To that end, this study explores both the factors that influence individual decisions and the way that they interact with preference to shape the decision-making process of sex tourists or individuals who travel …

Van Den Hoonaard, D.K. Qualitative Research In Action: A Canadian Primer, Deborah Landry

Qualitative Criminology (QC)

"Dr. Deborah Van Den Hoonaard has made a distinguished career of applying qualitative methodologies to uncover the rich everyday experiences of marginal populations. Professor Van Den Hoonaard holds a prestigious position as Canada Research Chair in Qualitative Analysis, garnering the respect of her peers for her fieldwork. The savvy experience of a seasoned field researcher unfolds easily in this guidebook, which feels more like a documentary than a methodology textbook. Nodding to the ethnographic traditions of the Chicago School and McGill University (the Canadian version of the Chicago School), her engagement with contemporary approaches is couched in an informed historical …

Louise Westmarland, Gender And Policing: Sex, Power, And Police Culture, Maria D. H. Koeppel

Qualitative Criminology (QC)

"Originally released in 2001, Louise Westmarland’s Gender and Policing has been released with a new publisher. With Routledge’s rerelease of the book, it is necessary to reassess the value of its research in the field of gender and policing to determine if it is still relevant. Throughout the book, Westmarland uses qualitative data to explore gendered themes in United Kingdom police forces. More specifically, her work focuses on whether differential deployment exists in policing based on gender and explores the role of gender within policing culture in several different situations. To analyze possible gendered patterns, Westmarland bases her work on …

“We’Re All Born With Equal Opportunities”: Hegemonic Individualism And Contextual Mitigation Among Delaware Capital Jurors, Ross Kleinstuber

Qualitative Criminology (QC)

"The Supreme Court has ruled that evidence derived from a capital defendant’s life history is crucial for making the reasoned moral judgment that is central to the death penalty’s constitutionality. However, Dunn and Kaplan (2009) suggested that individualism is so embedded in American culture that most people defer to it uncritically, which makes the use of such contextualizing mitigating evidence challenging. Prior studies suggest that capital jurors do not understand mitigation and focus on guilt-related issues when making their sentencing decisions, but they do not examine why this is so. This study extends these prior works by comparing the content …

Geoff K. Ward, The Black Child-Savers: Racial Democracy & Juvenile Justice, Robin D. Jackson

Qualitative Criminology (QC)

"Drawing on biographical details, people’s experiences, and historical documents, Geoff K. Ward examines Black child savers’ efforts and struggles to transform a Jim Crow juvenile justice system into a racially democratic model of juvenile justice. In his first book: The Black Child-Savers: Racial Democracy & Juvenile Justice, Ward describes Black child-savers as concerned Black Americans and their allies who sought racial reform in the juvenile justice system and who intervened on the behalf of Black dependent and delinquent youth. Ward also discusses “the sociocultural origins and organization of Jim Crow juvenile justice as well as the social movement by …

W.E.B. Dubois, The Philadelphia Negro: A Social Study, Howard Henderson

Qualitative Criminology (QC)

"Criminology’s Forgotten Genesis?

Crime is a phenomenon of organized social life, and is the open rebellion of an individual against his social environment. Naturally then, if men are suddenly transported from one environment to another, the result is lack of harmony with the new conditions; lack of harmony with the new physical surroundings leading to disease and death or modification of physique; lack of harmony with social surroundings leading to crime. (DuBois, p. 235) "

Saundra D. Westervelt & Kimberly J. Cook, Life After Death Row: Exonerees’ Search For Community And Identity, Jeanne Subjack

Qualitative Criminology (QC)

"Life After Death Row examines how individuals wrongly sentenced to death adjust to life after their release. The idea for the book arose in 2009, after Westervelt and Cook attended a conference and learned about the different aspects related to wrongful convictions that had yet to be addressed in academia. To gain a more thorough understanding of the events the participants experienced, the authors used life history and feminist methods to conduct their research. Although the current analysis is not necessarily focused on gender, feminist methods are useful here because they can be applied when a researcher “seeks an …

Introduction To Marshall Digital Scholar/Everything You Thought You Knew About Copyright, Jingping Zhang, Monica Brooks, Paris E. Webb, Larry Sheret

MU IR Day: April 11, 2013

Copyright Primer: demystifying the law and best practices for librarians. Ignorance of the law is no longer acceptable and individuals can now be assessed astronomically high statutory damages per infringement. Join us for a frank and informative discussion regarding current copyright law and application in your library when working with digital publisher content. We don’t pretend to have all the answers but our team will share our MDS workflow for securing permissions for inclusion in the institutional repository for public access

Construction And Constraint: Discussion Of Living Originalism, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Jack Balkin's Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court's decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray?

The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless

Brigham Young University Journal of Public Law

On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.

Rights Come With Responsibilities: Personal Jurisdiction In The Age Of Corporate Personhood, Roger M. Michalski

San Diego Law Review

This Article aims to reconnect corporate rights and obligations. It argues that courts must consider the availability and exercise of corporate rights when determining whether the corporation is amenable to suit in the forum. To make this novel argument, this Article begins by documenting the rise of corporate personhood, recently culminating in Citizens United v. FEC. Part II shows how the evolution of corporations now allows for the treatment of corporations as entities that can have political rights and political obligations. Part III argues that personal jurisdiction doctrine and scholarship has not acknowledged the rise of corporate personhood. Consequently, it …

Left To Their Own (Security) Devices: The Need For The California Legislature To Define Deeds Of Trust And Update California Civil Code Section 2932.5 In Accordance With The Modern Lien Theory, Joahua Norton

San Diego Law Review

This Comment introduces how deeds of trust were developed to allow the lender to avoid the judicial process by engaging in a nonjudicial foreclosure. This Part also explains that the confusion in the courts arose because deeds of trust are not defined in the statutes that govern them. Part III describes the early understanding of deeds of trust in California common law under the title theory and how California courts have increasingly rejected the title theory in favor of the lien theory. Part IV introduces the rise of a private alternative to public recording of assignments of deeds of trust …

Disparate Impact: Fairness Or Efficiency?, Larry Alexander

San Diego Law Review

Here is a stylized, simplified account of the disparate impact branch of discrimination law. Employer (E) uses certain criteria—which I shall call “the test”—to determine whom to employ. Those who qualify under the test may be disproportionately of a certain race, sex, national origin, or religion. I shall call those races, sexes, et cetera, that are disproportionately qualified under the test “the preferred,” and those races, sexes, et cetera, that are disproportionately unqualified under the test “the dispreferred.” In a disparate impact discrimination case—and again, I am simplifying somewhat, though immaterially—an employee candidate (C) who is both a member of …

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

Concepts Of Law, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

No abstract provided.

Natalie Stoljar’S Wishful Thinking And One Step Beyond: What Should Conceptual Legal Analysis Become?, Imer Flores

Georgetown Law Faculty Publications and Other Works

Praising wishful thinking is a serious risk that the author is willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in his scholarship. The author will analyze her claims and will agree mostly with them, he will also criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. The author intends to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

The Wonder-Clause, Anna Gelpern, Mitu Gulati

Georgetown Law Faculty Publications and Other Works

The Greek debt crisis prompted EU officials to embark on a radical reconstruction of the European sovereign debt markets. Prominently featured in this reconstruction was a set of contract provisions called Collective Action Clauses, or CACs. CACs are supposed to help governments and private creditors to renegotiate unsustainable debt contracts, and obviate the need for EU bailouts. But European sovereign debt contacts were already amenable to restructuring; adding CACs could make it harder. Why, then, promote CACs at all, and cast them in such a central role in the market reform initiative? Using interviews with participants in the initiative and …

Banks And Governments: An Arial View, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Financial systems and public treasuries are communicating vessels: strength or weakness in one flows to the other, and back. This chapter considers the implications of this insight using case studies from Europe, Asia, and Latin America. The connection is not unique to Europe, although it does not always result in feedback effects, or the ‘doom loop’ that has made headlines since 2010. Events now known as banking or government debt crises often have had elements of both, and could have gone either way. Policy and political choices determined their path. In all cases, governments were as indispensable for resolving banking …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

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 …

Drones And The International Rule Of Law, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay will proceed in four parts. First, it will briefly discuss the concept of the international rule of law. Second, it will offer a short factual background on US drone strikes (to the extent that it is possible to provide factual background on a practice so shrouded in secrecy). Third, it will highlight some of the key ways in which post 9/11 US legal theories relating to the use of force challenge previously accepted concepts and seek to redefine previously well-understood terms. Fourth, it will offer brief concluding thoughts on the future of the international rule of law in …

A Lockean Theory Of Intellectual Property Revisited, Adam D. Moore

San Diego Law Review

The primary, and perhaps sole, function of government according to Locke was to secure and protect the lives, liberties, and property of individuals who consented, explicitly or tacitly, to a specific political union. The question that I will address in this Article, and one that I took up over fifteen years ago, is: should we consider intellectual works to be the proper subjects of Lockean property claims? My answer then and now is “yes,” with the acknowledgement that such a view may require substantial revisions to Anglo-American systems of intellectual property. I will argue that intellectual property rights are no …

Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes

San Diego Law Review

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Toward A Lockean Moral Justification Of Legal Protection Of Intellectual Property, Kenneth Einar Himma

San Diego Law Review

This Article attempts to provide the beginnings of a viable moral justification for recognizing and providing legal protection of intellectual property. The argument follows a line of arguments that is fairly characterized as “inspired” by John Locke’s attempt to justify legal protection of what he took to be a natural, objective, moral right to material property. That is to say, it is Lockean in spirit in the following sense: Locke grounds his argument for original acquisition in the idea that a person is justified in acquiring something from the commons in virtue of an investment he makes of something that …

The Relationship Between Foundations And Principles In Ip Law, Robert P. Merges

San Diego Law Review

In my book Justifying Intellectual Property (JIP), I wrote about what I call the “foundations” of the field of intellectual property (IP) law. I tried to distinguish between a foundational level of discourse and another level, the level of basic principles. In the San Diego conference at which my book was discussed—and in several other settings as well—the most frequent and persistent line of questioning about my book centered on the relationship between these two levels. That is what this brief Article is about.

Managing The Intellectual Property Sprawl, Shubha Ghosh

San Diego Law Review

Professor Merges, despite the centrality of creative persons to his argument, organizes a set of ideas that are conducive to refocusing intellectual property law on users. I present this user-focused argument in this Article through the following five Parts. Part II explains my suggested approach to questions about the design of intellectual property law—an approach based on the new institutional economics and the work of Ronald Coase. Part II also addresses objections to this approach. Part III identifies the user in Professor Merges’s high-level principles grounded in Locke, Kant, and Rawls. Part IV follows this argument with a closer examination …