Jurisprudence Commons^™

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

A Statute Overtaken By Time: The Need To Reinterpret Federal Rule Of Evidence 803(8)(A)(Iii) Governing The Admissibility Of Expert Opinions In Government Investigative Reports., Edward J. Imwinkelried

St. Mary's Law Journal

Abstract Forthcoming.

The Accommodation Doctrine Revisited: Implications In Law And In Policy., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

Deciding To Intervene, Anna Spain

Publications

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example, should …

On Creativity In Constitutional Interpretation, Pierre Schlag

Publications

In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as …

Pragmatic Liberalism: The Outlook Of The Dead, Justin Deystone

Publications

At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that "law in the books" had drifted too far from the "law in action." This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and …

The Judge And The Drone, Justin Deystone

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Rethinking Domestic Violence, Rethinking Violence, Aya Gruber

Publications

No abstract provided.

Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman

Faculty Works

In the 1970s and early 1980s the US Supreme Court issued several landmark decisions establishing the contours of patent eligibility, a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next 25 years the Court of Appeals of the Federal Circuit oversaw a progressive expansion in the scope subject matter deemed patent eligible, highlighted by the adoption in the 1990’s of a “useful, concrete and tangible” test for patent eligibility that for all practical purposes seemed to subsume the patent …

Autopsy Reports And The Confrontation Clause: A Presumption Of Admissibility, Daniel J. Capra, Joseph Tartakovsky

Faculty Scholarship

Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial—a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.

Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez

Faculty Scholarship

During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. Conservative pundit Rush Limbaugh and many others railed against her nomination, proclaiming on talk radio broadcasts from coast-to-coast that she is a reverse-racist and nothing less than anti-white. A review of the Supreme Court record of race-related cases demonstrates Justice Sotomayor’s continued commitment to her stated judicial philosophy of fidelity to the law, inasmuch as she has not sought the unilateral imposition of her own personal racial policy preferences but has instead worked as a team player to scrupulously apply legal …

Preface: Policy-Oriented Jurisprudence And Contemporary American Legal Education, Tai-Heng Cheng

NYLS Law Review

No abstract provided.

Lionfish As A Metaphor For Governance In An Era Of Climate Change, Rebecca M. Bratspies

NYLS Law Review

No abstract provided.

Expanding The “Geography” Of Policy Options To Reduce Greenhouse Gas Emissions: A Commentary On Hari Osofsky’S The Geography Of Solving Global Environmental Problems, William Ascher

NYLS Law Review

No abstract provided.

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

NYLS Law Review

No abstract provided.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Decorating The Structure: The Art Of Making Human Law, Brian Mccall

Faculty Articles

This article continues to develop the theme of law as architecture begun in two published articles, The Architecture of Law: Building Law on a Solid Foundation, the Eternal and Natural Law and Consulting the Architect when Problems Arise: The Divine Law. Having considered the foundation and framework of human law, this article turns to the decoration of the structure through the craft of human law making. It examines the process whereby the natural law is determined in particular political communities. Human law is the craft of particularizing the general principles of natural law in a community’s laws. It relies on …

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that …

Pringle And The Nature Of Legal Reasoning, Paul Craig

Articles by Maurer Faculty

The Pringle judgment generated significant academic comment, concerning all aspects of the case. It raises, as will be seen, broader issues as to the nature of legal reasoning and the role played therein by text and background purpose or teleology.

Gunnar Beck is very critical of the CJEU, castigating it for reasoning that is said to be absurd, and accusing it of crossing the line between legal reasoning and political judgment. He is also critical of much academic analysis of the case, contending that this was too uncritical of the Court's judgment, and contending also that the interpretation of the …

Fiscal Illusion, Taxpayer Disconnect, And A Flawed Tax System: Catalysts For Income Tax Reform, Timothy Hurley, Katherine Hetherington

Barry Law Review

No abstract provided.