Jurisprudence Commons^™

Unmasking The Rhetoric Of Reform – The Bharatiya Sakshya Adhiniyam 2023 In Context, Pranav Verma

National Law School of India Review

This legislative comment is a critical analysis of the Bharatiya Sakshya Adhiniyam 2023 (‘BSA’), which has replaced the Indian Evidence Act, 1872 (‘IEA’). It analyses the major changes brought in by the BSA and discusses their implications. It further highlights the existing interpretive disputes within the IEA that the BSA leaves unaddressed. The BSA makes only a few substantive changes in improvement to the IEA, such as streamlining the rules on electronic evidence and expanding the scope of secondary evidence. Apart from this, most changes pertain to the renumbering of existing provisions and the deletion of obsolete colonial references. These …

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

Legal Summaries Of Administrative Law Cases, Kimberly M. Papadantonakis

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Ghost Guns: A Case Study On The Tension Between Public Exigencies And Statutory Construction, Bradley Krause

Catholic University Law Review

Administrative agencies often navigate public policy issues while simultaneously handling complex and highly technical matters. When facing a public emergency, how should courts interpret these agencies’ authorizing statutes? What rules of thumb exist to guide the courts? This Comment answers these questions through a case study on ongoing litigation pertaining to a recent ATF (Bureau of Alcohol, Tobacco, and Firearms) regulation. The regulation, targeted towards ghost guns (also known as “privately manufactured firearms”), seeks to incorporate these weapons within pre-existing definitions in the ATF’s authorizing statute, the Gun Control Act of 1968 (GCA). In spite of challenges to the regulation, …

Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins

Maine Law Review

Preserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that "government" became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for …

The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough

Maine Law Review

The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …

Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau

Maine Law Review

An appellate court does not disturb a trial court's findings of fact unless they are clearly erroneous, and, therefore, usually confines its review to an assessment of a trial court's legal conclusions based on those findings of fact. The method used by a trial court in making factual findings, however, involves the application of legal principles. If a trial court fails properly to apply these legal principles in arriving at its findings of fact, these findings may be tainted by the error. This is so, for instance, when a trial court's findings of fact have been "manifestly influenced or controlled" …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

Recovering Constitutional Identity In Colonial South India: Sedition, Sovereignty, And Small-C Constitutionalism In Pudukkottai, Bharath Gururagavendran

National Law School Journal

Constitutional identity is easiest to identify when it has already been credentialed: by a constitutional text, constituent authorisation, or judicial recognition. What remains visible when those markers are absent? Through a historically grounded study of the ‘Little Kingdom’ of Pudukkottai, a princely state in colonial South India, this article examines whether constitutional identity can be recovered from the small-c life of a polity whose opportunities for formal constitution-making were structurally foreclosed. Pudukkottai had no big-C moment. Its constitutional life, if it had one, must be reconstructed from less authoritative materials. The article argues that the absence of a constitutional text …

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

In Praise Of Ignoring Facts, Stephen E. Sachs

William & Mary Bill of Rights Journal

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of …

High Theory In Chinese Law, Mark Jia

Georgetown Law Faculty Publications and Other Works

The most contested question in the study of Chinese law is also its most enduring one: How should we characterize China’s legal system? In recent years, scholars have advanced numerous theories to explain Chinese law. Some have emphasized legality; others have stressed order; still others have described the system as dual or multi-faceted.

This Essay contributes a set of meta-theoretical insights to these discussions. It argues that the preceding debates would benefit from reflecting on the general qualities that make theories good, with special attention to the analytic costs and benefits of different modes of theorizing. It distinguishes between monist …

Two Forms Of Formalism In Contract Law, Gregory Klass

Cardozo Law Review

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This Article addresses that need by providing a general theory of contract exposition and differentiating between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is,” the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. This Article provides a detailed analysis of …

Textualism In Practice, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the …

The Enduring Relevance Of Congress Despite The Court's Shift To “Ordinary Reader” Statutory Interpretation, Abbe R. Gluck, Laila M. Robbins

Journal of Law and Policy

Has Congress become irrelevant to statutory interpretation? The dominant theoretical and doctrinal paradigm in American statutory interpretation has always been the conversation between Congress and the courts. Today, however, the Court’s new, second-generation textualists claim they have left Congress behind. They argue they have changed textualism’s perspective, from an “insider” perspective focused on Congress’s textual choices, to an “outsider” perspective based on how “ordinary people” read statutes. The Court’s self-professed shift away from a legiscentric approach, if true, would be a seismic shift in the conception of the judicial role. Whereas judges and scholars—including first-generation textualists—had for a century focused …

The Broad Church Of Modern Textualism, Nicole Steitz, Brian G. Slocum, Kevin Tobia

Journal of Law and Policy

Nearly thirty years ago, Justice Scalia’s Tanner lectures branded Holy Trinity Church v. United States (1892) as the anti-textualist archetype, a decision trumping the text’s plain meaning with a suspect judicial investigation of the law’s purpose or spirit. And so Holy Trinity seemed, until Gales and Solan’s groundbreaking empirical study supported an alternative reading of the key statutory term (“labor or service”) that would avoid this conflict between text and purpose. Taking inspiration from Gales and Solan, we reconsider Holy Trinity using the precepts of modern textualism, with its increased emphasis on context, pragmatics, anti-literalism, legal meaning, holistic meaning, non-compositionality, …

The Pet Fish Canon, William N. Eskridge Jr.

Journal of Law and Policy

Inspired by the work of the late Professor Larry Solan, this article proposes that judges recognize as one of the textualist canons of statutory construction a “pet fish” canon. Such a canon would posit that when an ordinary reader would understand two or more words to yield a meaning that is different than the sum of the two words defined separately, the statutory interpreter should not disaggregate them. The Roberts Court has already followed such a linguistic precept in some statutory cases, and this article proposes that the Court recognize this as a canon considered at least as seriously as …

Grammar & Syntax Arguments On The Roberts Court, Anita S. Krishnakumar

Journal of Law and Policy

In his excellent book, The Language of Judges, Professor Solan demonstrates how judges use grammatical or linguistic arguments to avoid acknowledging statutory ambiguity—and how they often get the grammar or linguistics wrong. Since his book was published, textualism has become the dominant interpretive approach on the U.S. Supreme Court—and we have seen increasingly prominent battles involving grammatical devices and rules. This comment takes Professor Solan’s analysis as a jumping off point to evaluate how grammar and linguistic arguments are employed on the modern Supreme Court, in the age of textualism. The comment offers a brief empirical and doctrinal assessment of …

Property Rights Or Obstacles To Progress?: The Fundamental Flaws In Takings Jurisprudence, Liam Higgins

Journal of Law and Policy

New York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New …

Interactional Ordering: Reconstructing Lon Fuller's Theory Of Private Law, Shyamkrishna Balganesh

Faculty Scholarship

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking …