Jurisprudence Commons^™

Brookshire Bros.: Cleanup On Aisle 9 - The Current Messy State Of Spoliation Law., Xavier Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

Enforcement Of Noncompetition Agreements: Protecting Public Interests Through An Entrepreneurial Approach., Griffin Toronjo Pivateau

St. Mary's Law Journal

Abstract Forthcoming.

Revenge Pornography: Exploring Tortious Remedies In Texas., Kevin B. Bennett

St. Mary's Law Journal

Abstract Forthcoming.

How Mccullen Affects San Antonio's Anti-Panhandling Ordinance., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Professor Aloysius A. Leopold: An Extraordinary Man., Gerry W. Beyer

St. Mary's Law Journal

Abstract Forthcoming.

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015., Vincent R. Johnson

St. Mary's Law Journal

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

Lincoln V. The Proslavery Constitution: How A Railroad Lawyer's Constitutional Theory Made Him The Great Emancipator., Paul Finkelman

St. Mary's Law Journal

Abstract Forthcoming.

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Interruptions In Search Of A Purpose: Oral Argument In The Supreme Court, October Terms 1958–60 And 2010–12, Barry Sullivan, Megan Canty

Utah Law Review

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for …

Raising Legal Giants: The Agency Of The Poor In The Human Rights Jurisprudence Of The Nigerian Appellate Courts, 1990-2011, Obiora C. Okafor, Basil E. Ugochukwu

Articles & Book Chapters

This article examines the extent to which the jurisprudence of the Nigerian appellate courts has expanded, maintained or contracted the opportunities of the poor for exercising as robustly as possible their own ‘agency’ to act to redress human rights abuses committed against them during the period between 1990 and 2011. In doing so, the article mostly utilises a critical socio-legal framework which situates Nigeria’s human rights law relating to the agency of the poor within its historical, social, economic and political context. Specifically, it utilises – among others – the kernel ideas of Upendra Baxi’s seminal trade-related market-friendly human rights …

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Foreword: Theorizing Contemporary Legal Thought, Justin Deystone, Duncan Kennedy

Publications

This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Hamrick V. Ward: Clarifying Implied Easement Law., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees., George P. Roach

St. Mary's Law Journal

Abstract Forthcoming.

How To Do Things With Hohfeld, Pierre Schlag

Publications

Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid.

“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …