Jurisprudence Commons^™

The Legitimacy Crisis And The Future Of Courts, Orna Rabinovich-Einy

Cardozo Journal of Conflict Resolution

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) …

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Are Physician-Patient Communications Protected By The First Amendment?, Martha Swartz

Cardozo Law Review de•novo

In the past several years, a number of states have enacted laws restricting physicians’ rights to speak freely with their patients. These laws go beyond informed consent laws enacted in most states in the 1960s and 1970s. While the informed consent laws require physicians to provide certain categories of information to patients prior to invasive treatment—such as the nature of the risks and benefits entailed—these new laws either prohibit physicians from discussing certain topics or mandate that they provide specific information to their patients that is only questionably supported by medical evidence. In the past several years, a number of …

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

Originalism As A Theory Of Legal Change, Stephen E. Sachs

Faculty Scholarship

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change …

Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson, Peter Menell

Utah Law Faculty Scholarship

The Supreme Court’s 2015 decision in Teva Pharmaceuticals v. Sandoz brings the standard of review of patent construction rulings into line with foundational juridical principles of appellate review, resolving one of the most divisive issues in patent litigation over the past two decades. This article shows that the decision's efficacy depends critically upon how district courts adapt their case management. District judges will need to implement effective procedures for ferreting out subsidiary factual disputes bearing on claim construction, scour the intrinsic evidence for contraindications, develop a sufficient evidentiary record for resolving the dispute, and explain their analysis. The article also …

A Standard Of Global Justice, Steven R. Ratner

Book Chapters

This chapter presents the standard of justice that is used in this book to appraise international law. That standard is based on two core principles, or what the book calls pillars—the promotion of international and intrastate peace, on the one hand, and respect for the basic human rights of all individuals, on the other. The justice of international norms is determined by the extent to which they lead to a state of affairs involving peace and human rights, with some room for deontological considerations in limited situations. The chapter defends the choice of these two pillars. It elaborates on the …

The Alignment Of Law And Norms: Of Mirrors, Bulwarks, And Pressure Valves, Mark A. Edwards

Faculty Scholarship

Why does law mirror norms sometimes, but other times not? This article examines two types of intervening factors that sometimes cause a persistent misalignment between law and norms: pressure valves and bulwarks.

Pressure valves are mechanisms that relieve the pressure placed on the law to change despite a gap with social norms. Pressure valves are found in two distinct social phenomena.

First, pressure on law to change to reflect social norms is relieved when law is not enforced against behavior that is illegal, but socially acceptable. Formally deviant acts that are socially acceptable often do not generate an enforcement response. …

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill

Osgoode Legal Studies Research Paper Series

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …

Will Uncooperative Federalism Survive Nfib?, Abigail R. Moncrieff, Jonathan Dinerstein

Law Faculty Articles and Essays

In the end, the Supreme Court's federalism jurisprudence seems to run contrary to its stated goals. The New Federalism era, up to and including NFIB, creates an incentive for the national government to flex its own muscles more, not less. Maybe that result will be good for voters' clarity and for uniformity of national policy, but it is not good for uncooperative federalism or for states' autonomy—the values that the Supreme Court seems to be trying to protect.

Call To The Texas Legislature: The Franchise Tax Needs Substansive Changes, Not Just Rate Reductions., Alyson Outenreath

St. Mary's Law Journal

Abstract Forthcoming.

Egads! Preservation Run Amok: A Call For Change To Arkansas's Was It Raised?, Was It Developed?, Was It Ruled On? Jurisprudence, Brian G. Brooks

University of Arkansas at Little Rock Law Review

No abstract provided.

A Warmer Welcome Home: The Need For Incorporating Therapeutic Jurisprudence In Reentry Courts, Kelsey Geary

St. Thomas Law Review

This comment will focus on one of the first established reentry courts-the Harlem Reentry Court ("HRC")-by evaluating its effectiveness with the basic principles of therapeutic jurisprudence. Section II provides general background on all the relevant topics: therapeutic jurisprudence, problem-solving courts, and reentry courts. Section III specifically focuses on the background, formation, and strategies of the HRC. Section IV gives an in-depth analysis of HRC's process, and how recognizing and further incorporating therapeutic practices could increase its success. Finally, Section V will conclude the argument by advocating for nationwide exposure and implementation of reentry courts for parolees around the country with …

Should Therapeutic Jurisprudence Be Used To Analyze Impacts Of Legal Process On Government, Carol L. Zeiner

St. Thomas Law Review

This article takes the controversial position that despite therapeutic jurisprudence's (sometimes referred to as "TJ") focus on the impact of laws and legal processes on the emotional and related physical well-being of human beings, there can be TJ-like impacts on government, at least in certain circumstances, that can be discovered by making a TJ analysis of the situation. It further contends that these TJ-like impacts on government ought to be examined for a number of important reasons: (1) they provide greater insights into therapeutic and antitherapeutic impacts on humans; (2) the deeper understandings gained through this analysis can then be …

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.