Jurisprudence Commons^™

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. …

Metodologi Pengajian Syariah Di Marsah, Johor Bahru., Mohd Kalam Mazad Abd Rahman

Student Works (2010-2019)

This study is focused to education methodology of Islamic laws used by faculty of Syariah al-Islamiah, one of the departments in Markaz al-Dirasat al-Arabiah Wal Islamiah (MARSAH),Johor Bahru,Johor Darul Takzim. In order to achieve the objective, the study mainly concentrates on learning and teaching method as well as curriculum offer by MARSAH. It was done to identify the nature and effectiveness of MARSAH in producing a competent graduate to compete with other Public and Private Higher Learning Institution graduates, in fulfilling the requirement of job market nowadays. Besides, the study also observed and identified problems and obstacles which occurred in …

Is The Law Hopeful?, Annelise Riles

Cornell Law Faculty Working Papers

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope? Is there anything hopeful about law? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” …

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

Close Encounters Of Three Kinds: On Teaching Dominance Feminism And Intersectionality, Kimberlé W. Crenshaw

Faculty Scholarship

I am pleased to be a part of this symposium honoring Catharine MacKinnon's groundbreaking work as a feminist theorist, legal advocate, and global activist. This invitation not only presents the opportunity to examine the interface between dominance theory and intersectionality, but also the occasion to delve further into the vexed rhetorical politics surrounding feminism and antiracism.

By now the fact that there has been a contested relationship between antiracism and feminism is almost axiomatic.1 Yet as with most things that have become matters of common knowledge, there is a risk that generalizations can metastasize into hardened conclusions that obscure rather …

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers Jr.

Law Faculty Publications

This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …

Uncharted Waters: The Supreme Court Plots The Course To A Constitutional Bright-Line Restriction On Punitive Awards In Exxon Shipping Co. V. Baker, Michael L. Brooks

Oklahoma Law Review

No abstract provided.

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

The New Calculus Of Punitive Damages For Employment Discrimination Cases, Sandra Sperino

Oklahoma Law Review

No abstract provided.

Against Certification, Justin R. Long

Law Faculty Research Publications

Certification is the process whereby federal courts, confronted by an open question of state law in federal litigation, ask the relevant state high court to decide the state law question. If the state high court chooses to answer, its statement of state law stands as the definitive declaration of the law on the disputed point. The case then returns to the certifying federal court, which resolves any remaining issues, including federal questions, and then issues a mandate. Although a wide range of academic commentators and jurists support certification as an example of respect for state autonomy, this Article shows that …

Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison, Patrick J. Charles

Cleveland State Law Review

However, to give Marshall full credit for the “choice of means” doctrine is unfair, he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. Indeed, the philosophical and legal influences of John Marshall have been the speculation of scholarly discourse for some time. For instance, many legal commentators and historians have attributed the influence of Marshall's opinions to being a strong Federalist because many of his opinions echo the Federalist interpretation of the Constitution. However, Marshall's opinions were also influenced by factors that sometimes conflicted with Federalist thought. This Article does not …

Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric, Theresa M. Beiner

Law Faculty Scholarship

The United States Supreme Court’s discourse on discrimination affects how fundamental civil rights - such as the right to be free from gender and race discrimination - are adjudicated and conceptualized in this country. Shortly after Congress passed Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer conduct. While the Court was more reluctant to presume such discrimination by governmental actors, it was deferent to Congress’s ability to set standards that would presume discrimination. Over time, however, that presumption and the Court’s deference to Congress has …

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …

Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism, Diana Ginn

Articles, Book Chapters, & Popular Press

In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

The Exclusionary Rule Redux - Again, Lloyd L. Weinreb

Fordham Urban Law Journal

The exclusionary rule itself is not very complicated: if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision, however, has been freighted with innumerable epicycles, and epicycles on epicycles ever since it was made part of Fourth Amendment jurisprudence. The exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness. It survives, but its reach is uncertain, its rational questioned, and its value doubted. Hudson v. Michigan …

Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …

The Potential Of Rulemaking By The Nlrb, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Humanity Of Law, H. Jefferson Powell

Faculty Scholarship

No abstract provided.