Jurisprudence Commons^™

Can A Pluralistic Commonwealth Endure?, Brian Mccall

Faculty Articles

This article considers whether the American pluralist system can satisfy Cicero's definition of a commonwealth as a multitude united in a definition of law and justice. The analysis is based upon a review of Thaddeus Kozinski's book, The Problem or Religious Pluralism and Why Philosophers Can't Solve It. This book critiques the philosophy of John Rawls, Jacques Maritain and Alisdaire MacIntyre. The critique is based upon Cicero's definition of a commonwealth and the article concludes that a society which maintains a deep pluralism over the first principles of law and justice cannot survive as a commonwealth.

The Inner Morality Of Private Law, Benjamin C. Zipursky

Faculty Scholarship

Lon Fuller's classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name "law" at all. In this essay, I argue that Fuller's basic principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, …

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

Articles

This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.

Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores

Georgetown Law Faculty Publications and Other Works

In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), …

The Problem Of Democracy In Contexts Of Polarization, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper I argue that contemporary democracies all over the world are more polarized than ever and intend to analyze not only the conditions of possibility of a democracy, in general, and in contexts of polarization, in particular, but also the relationship between democracy and polarization. My claim is that polarization, if certain conditions are met, more than a problem it is a great opportunity to democracy and a greater democratization. Hence, I bring to mind that it was Ronald Dworkin, who recently asked about the conditions of possibility of a democracy and its relationship with polarization by developing …

Natalie Stoljar’S Wishful Thinking And One Step Beyond: What Should Conceptual Legal Analysis Become?, Imer Flores

Georgetown Law Faculty Publications and Other Works

Praising wishful thinking is a serious risk that the author is willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in his scholarship. The author will analyze her claims and will agree mostly with them, he will also criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. The author intends to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Political And Constitutional Obligation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his provocative, courageous, and original new book, "Against Obligation: The Multiple Sources of Authority in a Liberal Democracy," Abner Greene argues that there is “no successful general case for a presumptive (or ‘prima facie’) moral duty to obey the law.” In my own book, "On Constitutional Disobedience," I argue that there is no moral duty to obey our foundational law–the Constitution of the United States. This brief article, prepared for a symposium on the two books to be published by the Boston University Law Review, I address three issues related to these claims. First, I discuss what seem to …

Toward A Jurisprudence Of Law, Peace, Justice, And A Tilt Toward Non-Violent And Empathic Means Of Human Problem Solving, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this essay the author sets out some questions about whether law can be made a site of encouraging more positive, peace seeking, non-violent, and pro-social behaviors. These questions derive from my own family history, as well as from my experience as a social and political activist, and also as a practicing lawyer and legal scholar. She begins in the introduction by setting out these questions in light of current conditions of domestic and international violence and some past considerations of categories of law. In the second section of this essay the author explains where her questions come from—her personal …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Faithful Presence And Theological Jurisprudence: A Response To James Davison Hunter, Zachary R. Calo

Scholarly Works

This paper considers how James Hunter’s arguments, presented both in his address and his book To Change the World, might inform the development of a constructive religious legal theory based in the particular resources of Christian theology. In speaking of religious legal theory, I mean something quite different than a theory of law and religion. For some time, the academic conversation about law and religion has centered around issues concerning church-state relations and, more broadly, the place of religion within the liberal political order. Yet, the regnant methodological concerns that have shaped this discourse reflect the boundedness of law to …

Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels

Faculty Scholarship

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.

International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …

Suboptimal Social Science And Judicial Precedent, Ben Grunwald

Faculty Scholarship

No abstract provided.

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

The Omnipresent Specter Of Omnicare, Sean J. Griffith

Faculty Scholarship

In this Article, written for a symposium commemorating the tenth anniversary of the Delaware Supreme Court’s opinion in Omnicare, Inc. v. NCS Healthcare, Inc., I argue, notwithstanding reports to the contrary, that Omnicare is still very much with us. Although there is a line of cases that qualifies the narrow holding of the opinion, the strong reading of Omnicare, which requires a fiduciary out in every merger agreement and elevates the “unremitting” duty to remain “fully informed” to an absolute jurisprudential principle, lives on in Delaware law, animating the Court of Chancery’s controversial rulings in the recent standstill cases. Shifting …

The U.N. Security Council's Duty To Decide, Anna Spain

Publications

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical …

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …