Jurisprudence Commons^™

Law's Halo And The Moral Machine, Bert I. Huang

Faculty Scholarship

How will we assess the morality of decisions made by artificial intelli­gence – and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.

Divergence And Convergence At The Intersection Of Property And Contract, Giuseppe Dari-Mattiacci, Carmine Guerriero

Faculty Scholarship

In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely …

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Law, Religion, And Secular Order, Zachary R. Calo

Scholarly Works

This article compares the law and religion jurisprudence of the US Supreme Court and the European Court of Human Rights across three legal areas: religious symbols and religion-state relations, individual religious freedom, and institutional religious freedom or freedom of the church. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. Although there continues to be significant jurisprudential diversity between these two courts and across these legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern West.

Foreword To Latcrit 2017 Symposium: What’S Next? Resistance Resilience And Community In The Trump Era, Jorge R. Roig, Saru M. Matambanadzo, Sheila I. Vélez-Martínez

Scholarly Works

In this Foreword, we strive to contextualize “LatCrit XXI: What’s Next?” against the backdrop of two crises: the current political crisis in the United States and the continuing crisis of scarcity that impacts the legal academy. Through an examination of these crises, we will reveal how LatCrit scholars, in their efforts to build community and in their commitment to critical outsider scholarship, are part of the constellations of resistance that struggle against el mundo malo. We will argue that LatCrit has become a necessary institution for those seeking to engage in persistent resistance and dissent in the critical and progressive …

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.

Forensic Science: Complex Admissibility Standard For Scientific Evidence And Expert Witness's Testimony, Md Wahidur Rahman, Marissa J. Moran

Publications and Research

Modern science forces the world to accept new theories and invention. Science has invented several tools, which are used in the legal system to dispute criminal cases. Scientific evidence and expert witness testimony have weight in the courtroom because those are scientifically proved to be true. Even though there are few case laws and Federal rule of evidence 1975, still the admissibility standard is complex which may lead injustice.

This article examines the Federal rule of evidence, case laws and scholars’ opinion to address the complexity of the admissibility standard of scientific evidence and expert testimony. The first legal question …

Enforceability: Foreign Arbitral Awards In Chinese Courts, Mo Zhang

San Diego International Law Journal

Enforcement of foreign arbitral awards in China has always been a widespread concern. There is not only a fear of deficiency in the Chinese legal system, but also a disconnection between foreign perception and Chinese reality. Since the nation joined the New York Convention in the 1980’s, China has made efforts to fulfill its treaty obligations. Foreign parties, however, remain skeptical about whether foreign arbitral awards will be fairly enforced in the country.

In 2015, the Supreme People’s Court of China (SPC) issued a judicial interpretation that contains provisions explicitly addressing several confusing and controversial matters on foreign arbitration. In …

Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres

Journal of Legislation

No abstract provided.

Finality, Appealability, And The Scope Of Interlocutory Review, Bryan Lammon

Washington Law Review

Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the …

If An Interpreter Mistranslates In A Courtroom And There Is No Recording, Does Anyone Care?: The Case For Protecting Lep Defendants’ Constitutional Rights, Lisa Santaniello

Northwestern Journal of Law & Social Policy

No abstract provided.

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current …

Murphy V. Ncaa: The Supreme Court's Latest Advance In Chemerinsky's "Federalism Revolution", Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.

Obscured Boundaries: Dimaya's Expansion Of The Void-For-Vagueness Doctrine, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.

A Dollar For Your Thoughts: Determining Whether Nominal Damages Prevent An Otherwise Moot Case From Being An Advisory Opinion, Maura B. Grealish

Fordham Law Review

This Note examines whether nominal damages should sustain an otherwise moot constitutional claim. A majority of circuit courts have held that a lone claim for nominal damages is sufficient. A minority of circuit courts have determined that nominal damages are insufficient because there is no practical effect in determining such a case. The courts in the minority analogize nominal damages to declaratory judgments and justify their rulings on the basis of judicial economy. This Note proposes that the minority rule is impermissible under current precedent from the U.S. Supreme Court. However, this Note also proposes that the majority rule be …

The Canon Wars, Anita S. Krishnakumar, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …