Jurisprudence Commons^™

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.

The Irrepressible Myth Of Klein, Howard M. Wasserman

Faculty Publications

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternatives in equal measure. Second, and relatedly, people assume that a voter’s preferred alternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter’s preferred alternative. These two assumptions guide the thinking …

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.

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

Articles

No abstract provided.

Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane

Faculty Scholarship

This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …

Empirical Desert And The Moral Economy Of Punishment, Zachary R. Calo

Scholarly Works

This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral …

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

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 …