The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, 2011 Faulkner University, Jones School of Law
The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod
Cleveland State Law Review
This article attempts to carve a path between the two sides in this autonomy war. It begins by bringing into dialogue with each other four of the most influential legal philosophers of our day: Joseph Raz, Ronald Dworkin, John Finnis, and Robert George. Each of these four scholars makes bold and instructive claims about the value and limits of personal autonomy. The article then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that one can glean from state law about the relationship between personal autonomy …
Interpretation And Construction: Originalism And Its Discontents, 2011 University of Pennsylvania Carey Law School
Interpretation And Construction: Originalism And Its Discontents, Kermit Roosevelt Iii
All Faculty Scholarship
No abstract provided.
Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, 2011 University of Washington School of Law
Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan
Articles
Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., 2011 St. Mary's University
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
St. Mary's Law Journal
Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., 2011 St. Mary's University
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., 2011 St. Mary's University
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
St. Mary's Law Journal
Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., 2011 St. Mary's University
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan
St. Mary's Law Journal
The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …
Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., 2011 St. Mary's University
Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors
St. Mary's Law Journal
The reliability of LIDAR (Light Detection and Ranging) is generally questioned for one of two reasons. First, when the speeding charge is of such great importance to the defendant that he must challenge the technology. Second, when the defendant is charged with a different and more serious crime because of the traffic stop. In this instance the reliability of the equipment provides the opportunity to question the stops’ underlying probable cause. Assuming the particular jurisdiction has not settled the issue of reliability of LIDAR evidence, the court must require the prosecutor to present expert testimony to show reliability. In the …
Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., 2011 St. Mary's University
Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers
St. Mary's Law Journal
Abstract Forthcoming.
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., 2011 St. Mary's University
A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham
St. Mary's Law Journal
Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …
Demosprudence In Comparative Perspective, 2011 Cleveland State University
Demosprudence In Comparative Perspective, Brian E. Ray
Law Faculty Articles and Essays
This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive …
"Hot News": The Enduring Myth Of Property In News, 2011 University of Pennsylvania Carey Law School
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
All Faculty Scholarship
No abstract provided.
Institutional Practice, Procedural Uniformity, And As-Applied Challenges Under The Rules Enabling Act, 2011 University of Pennsylvania Carey Law School
Institutional Practice, Procedural Uniformity, And As-Applied Challenges Under The Rules Enabling Act, Catherine T. Struve
All Faculty Scholarship
The article offers information on the federal practices, uniformity in the actions and challenges faced by Supreme Court in decisions related to the court cases. It assesses the court cases Shady Grove Orthopedic Associates, PA v. Allstate Insurance Co. and Hanna v. Plumer and mentions the challenges of jurisdiction in taking decisions.
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), 2011 UIC School of Law
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
UIC Law Review
No abstract provided.
Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), 2011 John Marshall Law School
Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn
UIC Law Review
No abstract provided.
Apprendi Land Becomes Bizarro World: Policy Nullification And Other Surreal Doctrines In The New Constitutional Law Of Sentencing, 2011 FAMU College of Law
Apprendi Land Becomes Bizarro World: Policy Nullification And Other Surreal Doctrines In The New Constitutional Law Of Sentencing, Benjamin Priester
Journal Publications
Imagine a final exam essay answer in constitutional law premised upon the following doctrinal principles: (i) identical findings of fact that produce identical effects on the outcome of a decision should sometimes be constitutional and should sometimes be unconstitutional based on formalistic doctrinal lines unrelated to the substantive merits of the issue being decided; (ii) decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings; (iii) appellate review of trial court decision-making is unconstitutional; and (iv) courts are entitled to substitute their own policy preferences for those enacted by the legislature on …
The Supreme Constitutional Court Of Egypt: The Limits Of Liberal Political Science And Cls Analysis Of Law Elsewhere, 2011 Georgetown University Law Center
The Supreme Constitutional Court Of Egypt: The Limits Of Liberal Political Science And Cls Analysis Of Law Elsewhere, Lama Abu-Odeh
Georgetown Law Faculty Publications and Other Works
On January 25th 2011, following a popular uprising, president Hosni Mubarak of Egypt was forced to relinquish power after thirty years of continuous rule. The popular uprising came to be known as the Egyptian revolution of January 25th marking the first time in the modern history of Egypt an authoritarian ruler is forced out of power through the mobilization of Egyptian masses. The popular mobilization came at the heels of several years of “wildcat” workers' strikes affecting various sectors of the economy, public and private, as well as recurring demonstrations spearheaded by the youth of the Egyptian middle class demanding …
Hannah Arendt As A Theorist Of International Criminal Law, 2011 Georgetown University Law Center
Hannah Arendt As A Theorist Of International Criminal Law, David Luban
Georgetown Law Faculty Publications and Other Works
This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than …
The Anti-Empathic Turn, 2011 Georgetown University Law Center
The Anti-Empathic Turn, Robin West
Georgetown Law Faculty Publications and Other Works
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.
Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …
Franz Kafka, Lawrence Joseph, And The Possibilities Of Jurisprudential Literature, 2011 Georgetown University Law Center
Franz Kafka, Lawrence Joseph, And The Possibilities Of Jurisprudential Literature, Patrick J. Glen
Georgetown Law Faculty Publications and Other Works
The purpose of this article is twofold. First, it offers a complementary reading of Franz Kafka’s writings on the law and Lawrence Joseph’s novel Lawyerland. This reading focuses on the distinct perspectives offered by these authors. Whereas Kafka approaches the law from the perspective of the litigant or accused, Joseph’s perspective, through the eyes of his lawyers and judges, is that of the consummate insider. The importance of perspective rests with the fact that although law might constitute an objective system, its experience is inevitably subjective. The absurd malevolence of law in Kafka can thus be rationalized by the system …