Jurisprudence Commons^™

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Law Faculty Articles and Essays

On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."

One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …

Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod

Faculty Articles

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realize the right of women to vote and then to eliminate explicit discrimination against women from the nation's laws. For others, it is a political movement, the purpose of which is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy--a system of thought--and a community of belief centering on attaining political, social, and economic equality for women, men, and people of any gender. …

Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O'Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

The Debate That Never Should Have Been: Dworkin, Hart, And The Analytical Project, Allan C. Hutchinson

Articles & Book Chapters

As with most other things, the fortunes of jurisprudence ebb and flow. After an extended period of scholarly dominance, the past few years have witnessed a relative decline in its significance and prominence. This is no bad thing because jurisprudence has been trapped in an increasingly narrow debate characterized by its esoteric confines and analytical ambitions-what is the nature of law? There appeared to be a brief moment when other more expansive and less restrictive options for disciplinary development seemed possible. However, any reports of the demise of analytical jurisprudence now seem premature: the posthumous publication of a dated essay …

The Nature Of The Judicial Process: The Enduring Significance Of A Legal Classic, Joel K. Goldstein

Touro Law Review

No abstract provided.

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and …

The Free Exercise Clause, Minority Faiths, And The Possibility Of Religious Independence After Rawlsian Liberalism, David Charles Scott

Theses and Dissertations--Philosophy

The conversation to which my dissertation belongs is that which preoccupied John Rawls in Political Liberalism, namely: (1) how it is possible that a religiously and morally pluralistic culture like ours lives cooperatively from one generation to the next, and (2) The extent to which religious or moral convictions are appropriate bases for political action. My three-essay dissertation is about aspects of this investigation that affect minority or non-mainstream religious and cultural groups, since legal institutions, and theoretical models of them (such as Rawls’s and Ronald Dworkin’s) are in many ways ill-suited to accommodate their ways of life. In the …

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review (2017-Present)

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses the difficulties …

The End Of Special Treatment For Cubans In The U.S. Immigration System: Consequences And Solutions For Cubans With Final Orders Of Removal, Lindsay Daniels

Dickinson Law Review (2017-Present)

In January 2016, former President Obama announced the end of the “Wet-Foot, Dry-Foot” Policy, which granted special immigration benefits to Cuban migrants. As part of the agreement to end this policy, the Cuban government agreed to take back its citizens with final orders of removal for criminal convictions, an action that it had refused to take for decades. This Comment will begin by exploring past and present immigration policies between the United States and Cuba, including recent developments like the normalization of relations and the impact of President Trump’s immigration policies.

This Comment will then explore possible avenues of relief …

Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington

Dickinson Law Review (2017-Present)

As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that opinion, …

But It’S Just A Little White Lie! An Analysis Of The Materiality Requirement Of 18 U.S.C. § 1425, Hanna E. Borsilli

Dickinson Law Review (2017-Present)

Once an individual becomes a naturalized citizen, the U.S. government can revoke citizenship only upon a discovery that the individual was not eligible to procure naturalization at the time of application. The process to revoke naturalization, referred to as denaturalization, may begin with a conviction under 18 U.S.C. § 1425, a criminal statute broadly prohibiting any attempt to procure naturalization “contrary to law.”

This “contrary to law” language created confusion regarding the required statutory elements of § 1425. Most courts to address this issue, including the Supreme Court in Maslenjak v. United States, held that § 1425 requires proof …

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Linda L. Berger, Bridget J. Crawford, Kathryn M. Stanchi

Scholarly Works

Professor Linda Berger rejoins her Feminist Judgments: Rewritten Opinions of the United States Supreme Court coauthors in this essay presenting feminism as the foundation for a developing form of rich, complex, and practical legal scholarship-the lens and the means through which we may approach and resolve many legal problems. First, this essay explores the intellectual foundations of feminist legal theory and situates the United States and international feminist judgments projects within that scholarly tradition. It next considers how the feminist judgments projects move beyond traditional academic scholarship to bridge the gap between the real-world practice of law and feminist theory. …

The Techno-Neutrality Solution To Navigating Insurance Coverage For Cyber Losses, Jeffrey W. Stempel, Erik S. Knutsen

Scholarly Works

Insurers currently constrict coverage for losses involving electronic information in traditional insurance product lines. As a result, insurance customers are driven to the brave new world of non-standardized varieties of cyber-risk insurance policies. That world abounds with coverage gaps as the market for cyber insurance sorts itself out. Until that synchronization of coverage for cyber losses occurs, litigation is bound to occur as the boundaries of coverage remain patchwork and uncertain.

This article examines the degree to which cyber losses differ from other insured losses. The cyber-loss insurance coverage jurisprudence reveals a mishmash of principles and coverage terms that are …

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Law Faculty Publications

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Racial Justice And Federal Habeas Corpus As Postconviction Relief From State Convictions, Leroy Pernell

Journal Publications

It is the purpose of this Article not to simply document the influence of race on our criminal system and its role in the current racial crisis of overrepresentation of minorities in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity – federal habeas corpus as a postconviction remedy. By looking first at the racial context of several “landmark” criminal justice reform decisions, this Article considers how race serves as the root of the procedural due process reform that began in earnest during the Warren Court. This Article …