Jurisprudence Commons^™

Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha

Scholarship@WashULaw

This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …

The Role Of Norms In Modern-Day Government Ethics, Veronica Root Martinez

Faculty Scholarship

Many scholars, policymakers, advocacy groups, members of the media, and citizens-at-large are lamenting the perceived decrease in adherence to norms and ethics by certain government officials over the past few years. Informal mechanisms—whether they be norms, ethics, customs, or a “gentleman’s word”—have long been relied upon to ensure certain standards of behavior within all aspects of society. The American government is no exception. From America’s founding, the rule of law created the backstop for its governmental processes, but the virtue of its leaders remained a constant component of its success. To be fair, the country has seen more than its …

The Morality Of Fiduciary Law, Paul B. Miller

Journal Articles

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or ought, fiduciary law prove responsive to them?

Where in other areas of private law theory – notably, tort theory – pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional for the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several …

Dissenting From The Bench, Christine M. Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

Equality And Access To Credit: A Social Contract Framework, John Linarelli

Scholarly Works

The problems governments face in regulating consumer finance fall into two categories: normative and cognitive. The normative problems have to do with the way that some governments, particularly those adhering to an American model of household finance, have financed social mobility and intergenerational welfare through debt, a tenuous and socially risky policy choice. Credit has a substantial social aspect to it in the United States, where the federal government has in some way engaged in subsidizing about 1/3 of consumer credit, particularly in the residential mortgage market, feeding into a substantial capital markets dimension through government-guaranteed securitization. Most Americans think …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Restatements Of Statutory Law: The Curious Case Of The Restatement Of Copyright, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task …

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

Charles Reich And The Legal History Of Privacy, Sarah Seo

Faculty Scholarship

Historians’ interest in Reich offers a case study of the relationship between historical and legal studies. What can legal scholars learn from historians, and what can historians learn from legal scholarship? This Essay will explore these two questions by focusing on Igo’s The Known Citizen since she encountered Reich not with the dual citizenship of a legal historian but as an intellectual historian. I will first highlight what legal scholars can learn from historians by summarizing the main arguments in The Known Citizen. Then, I will provide an alternative legal account to Igo’s history of privacy, which may clear …

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

Articles

The article critiques the Pure Theory of Law, arguing that it is inadequate and detached from the dynamic and creative aspects of legal practice. The author advocates for a reimagined legal theory that integrates critical perspectives, embodiment, and a connection to the natural world, emphasizing the need for adaptability and responsiveness over static dogma.

"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.

This Article delineates the various contexts in which slack arises and …

Through A Lens Of Therapeutic Jurisprudence: A Case Study Of The Children’S Court Drug Court In Perth, Suzanne Ellis

Theses: Doctorates and Masters

The Children’s Court Drug Court (CCDC) has operated for 20 years in Perth as an alternative Court for drug-using young offenders who present at the Children’s Court. Despite the CCDC’s relative longevity, researchers have examined neither the inner workings of the Court nor the experiences of its actors. The current study aimed, not to evaluate the CCDC, but to identify measures needed to refine CCDC processes to enhance the experiences and outcomes of young people who participate in the CCDC. It argues that despite the CCDC’s foundations in contentious therapeutic jurisprudence principles, on balance, the actors – young people, their …

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …

Mediation Ethics After The Singapore Convention, Zachary R. Calo

Scholarly Works

The aim of this essay is to consider the shape of mediation ethics after the Singapore Convention. It assesses the role of ethics with the Convention framework, as well as how the Convention can inform broader conversations about mediation ethics. The international commercial mediation landscape initiated by the Convention commends certain approaches to ethics for its effective and efficient operation. In particular, it is argued that the Convention system is best complemented by codes of ethics that are clear and standardized in their norms as well as modest in the scope of their regulatory ambitions. An ethical system defined by …

Posthuman Dignity And The Problem Of The Body, Zachary R. Calo

Scholarly Works

This essay examines the anthropology of transhumanist and posthumanist thought, focusing on human dignity and the role of embodiment. It posits that posthumanism views the body as a barrier to achieving dignity rather than an intrinsic site of dignity, advocating for transcending biological limits towards a more dignified existence. The discourse contrasts transhumanist and bioconservative perspectives on dignity, emphasizing that dignity is not an inherent trait but is achieved through technological enhancement and the redefinition of embodiment, impacting contemporary ethical considerations in biotechnology.

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Data Governance And The Elasticity Of Sovereignty, Roxana Vatanparast

Brooklyn Journal of International Law

Traditionally, the world map and territorially bounded spaces have dominated the ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, reflected in traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to the traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

Analytic Jurisprudence In Time, Dan Priel

Articles & Book Chapters

Friedrich Nietzsche had this to say about philosophers:

"You ask me which of the philosophers’ traits are really idiosyncrasies? For example, their lack of historical sense, their hatred of the very idea of becoming, their Egypticism. They think that they show their respect for a subject when they de-historicize it, sub specie aeterni – when they turn it into a mummy. All that philosophers have handled for thousands of years have been concept-mummies; nothing real escaped their grasp alive. When these honorable idolators of concept worship something, they kill it and stuff it; they threaten the life of everything they …

On Justice: An Origin Story, Stephen Paskey

Buffalo Law Review

No abstract provided.