Jurisprudence Commons^™

Proximate Retribution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender's conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of his victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article …

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Systems Pluralism And Institutional Pluralism In Constitutional Law: National, Supranational, And Global Governance, Daniel Halberstam

Book Chapters

Constitutions are often seen as creating a closed and hierarchically organized system of law. Constitutional systems are taken as closed to claims of legality from outside the system and as setting forth a hierarchy of norms and institutions that governs within the system. This consolidation of authority, in turn, is predominantly associated with a radical political (re)founding of the state. Politics are framed by law and law is grounded in an act of collective politics on the part of an existing or aspiring community defined by shared histories, norms, processes, and politics.

A Judicial Retrospective: Significant Decisions By The Arkansas Supreme Court From 1991 Through 2011, Robert L. Brown

University of Arkansas at Little Rock Law Review

In 2008, a study issued by the University of Chicago ranked the Arkansas Supreme Court as the second best state supreme court in the nation, based on the justices' productivity in issuing opinions, quality of opinions, and independence from partisan pressures. The last two decades have seen the Arkansas Supreme Court issue a multitude of opinions considering separation of powers, public education, prior restraint of the press, expanded rights under the Arkansas Constitution, class actions and tort reform.

This article highlights many of the most significant opinions from the last two decades and comments on their impact in Arkansas and …

A Brief Summary Of Decisions From The Arkansas Supreme Court Affecting Gays And Lesbians, Anthony L. Mcmullen

University of Arkansas at Little Rock Law Review

Half of Arkansans believe that sex-sex relationships should not be afforded legal recognition, including recognition in the form of a civil union or domestic partnership. Further, Arkansas is one of thirty states to constitutionally define marriage as the legal union between a man and a woman. Nonetheless, the gay and lesbian civil rights movement has been afforded protection in the courts through Arkansas Supreme Court decisions protecting same sex couples' rights.

Starting in 2002, the Arkansas Supreme Court has provided at least some protection to same sex couples and their families through decisions where the Court could have declined to …

You Can't Go Holmes Again, Lumen N. Mulligan

Faculty Works

Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer …

The Eleventh Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center: Are Federal Judges Competent? Dilettantes In An Age Of Economic Expertise, The Honorable Jed Rakoff

Fordham Journal of Corporate & Financial Law

The title of my little talk here tonight is “Are

Federal Judges Competent?” This naturally raises the question of whether I am competent to answer that question. I put this question to myself, and, after careful consideration of both sides of the argument, concluded that I am competent to determine whether I am competent. As H. L. Mencken once said, “A judge is a law student who grades his own exams.”

Property On The Borderline: A Comparative Analysis Of The Legal Status Of Animals In Canada And The United States, Maneesha Deckha

Cardozo Journal of International and Comparative Law

The article examines Canada's progressive stance on social issues but highlights that this progressiveness does not extend to animal rights, where Canada often lags behind the U.S. It explores legal developments challenging the traditional property status of animals, particularly in tort law and estate planning, while emphasizing that these changes are symbolic and limited to companion animals.

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Scholarly Works

No abstract provided.

Pro Bono Or Problemo: Can A Moral Obligation Effectively Bridge The 'Justice Gap'?, Jessica Ratner

Public Interest Law Reporter

No abstract provided.

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez

St. Mary's Law Journal

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …

Expanding Protective Order Coverage., Kellie K. Player

St. Mary's Law Journal

The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …

The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis

St. Mary's Law Journal

Abstract Forthcoming.

Economic Development And The Problem With The Problem-Solving Approach, Justin Deystone

Publications

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new …

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Publications

No abstract provided.

The Faculty Workshop, Pierre Schlag

Publications

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber

Publications

No abstract provided.

Following A Sigmoid Progression: Some Jurisprudential And Pragmatic Considerations Regarding Territorial Acquisition Among Nation-States, John C. Duncan, Jr.

Journal Publications

This article analyzes methods and doctrines used by States to acquire territories. The role of the United Nations in resolving disputes between nations and the inhabitants directly affected by the disputes is also addressed, including the jurisdictional, jurisprudential, and practical considerations of territorial acquisition. Finally, traditional territorial acquisition doctrines are applied to extraterrestrial and outer space acquisition. As Western civilization etched out territories and borders across its known world, international norms of diplomatic behavior appeared in the form of customs. These customs eventually grew into codifications, which in turn grew into the elaborate international system enjoyed and protested today. Laws …

Response Essay: Some Observations On Professor Schwartz's "Foundation" Theory Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, …

Decarceration Courts: Possibilities And Perils Of A Shifting Criminal Law, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.

With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including …