Jurisprudence Commons^™

The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder

St. Mary's Law Journal

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …

Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole

St. Mary's Law Journal

Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Informed Choices And Uniform Decisions: Adopting The Aba's Self-Enforcing Administrative Model To Ensure Successful Surrogacy Arrangements, Christine Metteer Lorillard

Cardozo Journal of Equal Rights & Social Justice

Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique ("ART'), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as …

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …

Outsiders Inside The Beltway: Latcrit Xiv: Critical Outsider Theory And Praxis In The Policymaking Of The New American Regime., Anthony E. Varona

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

Ronald Dworkin’S Justice For Hedgehogs And Partnership Conception Of Democracy (With A Comment To Jeremy Waldron’S 'A Majority In The Lifeboat'), Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte …

New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley

St. Mary's Law Journal

A new law that recently took effect has changed the way non-judicial real property foreclosure sales work in Texas. The new law, known as House Bill 655 (HB 655), relates to foreclosure sales in Texas. HB 655 amends the language of Texas Property Code section 51.0075(f) dealing with when the purchase price is due at a foreclosure sale. The amendment, however, complicates foreclosure sales in Texas. The purchase price at the foreclosure sale is no longer due immediately. Instead, if a purchaser at a foreclosure sale requests additional time to deliver the purchase price, the trustee—the person conducting the foreclosure …

Unequal And Unfair: Why Texas Should Require Mandatory Sales Price Disclosure To Reconcile The Texas Property Tax Code With The Texas Constitution., Nathan Morey

St. Mary's Law Journal

Appraisal districts in Texas are implementing a system of taxation that is unequal and unfair. Texas counties, cities, and school districts depend on local ad valorem property taxes for revenue. Under the Texas Property Tax Code, the Code establishes appraisal districts to determine the value of taxable property. There is, however, a discrepancy between the cash value of the land and its appraisal value, especially when compared to commercial property and residential property. Commercial property and high-end residential real estate are often undervalued by appraisal districts throughout the state. Because commercial properties are under-appraised, the tax burden is being unequally …

Leaks, Lies, And The Moonlight: Fiduciary Duties Of Associates To Their Law Firms., Susan Saab Fortney

St. Mary's Law Journal

This symposium article examines the fiduciary duties of law firm associates. After applying agency principles to the firm-associate relationship, the article analyzes specific duties and discusses cases involving alleged breaches of fiduciary duties by associates. It explores associate duties in the current legal, organizational, and socio-technological environment in which associates practice. The article closes with observations on the importance of firm principals considering the effect of firm culture on associate attitudes and conduct.

If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

The Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Standards for Appellate Conduct (Standards) on February 1, 1999. The Standards are intended to “give practitioners a valuable tool to use with clients who demand unprofessional conduct” by imposing “an affirmative duty to educate the client about the Standards of Appellate Conduct.” The Standards further state they do not “alter existing standards of conduct under the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.” Under the Rules of Disciplinary Procedure, sanctionable conduct includes “acts or omissions…which violate one or more of the Texas …

Hall's Standards Of Review In Texas Foreword., Wallace B. Jefferson

St. Mary's Law Journal

Abstract Forthcoming.

Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum

St. Mary's Law Journal

The Texas Public Information Act (TPIA) grants everyone a statutory right to access records of a governmental body unless disclosure would violate the law. Generally, TPIA is construed broadly to favor disclosure, but the rise of modern technology like email and text messaging reveals how dated TPIA truly is. According to the recent City of Dallas v. Dallas Morning News, LP, a governmental body is not required to release any business-related electronic communications sent via personal devices. This means governmental employees can conduct official business via personal email or cell phone without being subject to disclosure provisions, unless the requester …

Hall's Standards Of Review In Texas., W. Wendell Hall, O. Rey Rodriguez, Rosemarie Kanusky, Mark Emery

St. Mary's Law Journal

Standards of review distribute power within the judicial branch by defining the relationship between trial and appellate courts. These standards “frame the issues, define the depth of review, assign power among judicial actors, and declare the proper materials to review.” Standards of review are the cornerstones of appeals. These standards must be woven into the discussion of the facts and substantive law in a manner which persuades the appellate court that the trial court erred. Litigants must measure their factual and legal arguments against the appropriate rubric to write an effective and persuasive brief. Appellate judges agree that mechanical recitation …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Faculty Scholarship

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of …

Reason And Reasonableness In Review Of Agency Decisions, Jeffrey Pojanowski

Journal Articles

A company markets computer software that provides day traders with real-time data and recommendations for buying and selling futures on commodities markets. In a late night infomercial, the firm touts the spectacular "certified" profits that purchasers would have earned had they been using this one-of-a-kind system over the past seven years. What the suntanned host does not tell viewers at home is that these "certified" results are not based on actual trades, but simulations of what the system would have produced based on historical data. A regulator initiates administrative proceedings against the firm, charging that this omission "defrauded" customers under …

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

Journal Articles

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …