Yale journal of law & the humanities最新文献

{"title":"Taking Law Seriously","authors":"William Gaddis","doi":"10.5040/9781509940752","DOIUrl":"https://doi.org/10.5040/9781509940752","url":null,"abstract":"A Frolic of His Own is not merely the finest novel ever written about the Federal Rules of Civil Procedure .... In an era when students who have not paid the dues of reading Eliot, Yeats, or even Wordsworth claim the privilege of postmodernist critique, William Gaddis's Frolic may prove temptation or corrective. It will prove temptation if its howling swirl of disconnected voices and its pronouncements about the reducibility of law to language receive false praise and are condescendingly characterized as postmodernist. It will prove corrective if viewed as a blessedly oldfashioned modernist novel, or, better yet, as an even older-fashioned cri de coeur for personal salvation, if not social justice, as a value still undeconstructed. Even more fundamentally, it will prove corrective as a display of linguistic art capable of anger, hysterical humor, and undeconstructable prose assertion. As a first step, I will risk naive referentiality in the most literal sense: I will say what the novel is about. It is about an insanely neurotic man named Oscar Crease who, like other characters in the book, cannot overcome his conviction that the justice system is the best medium for winning recognition of his yearnings, beliefs, and claims of integrity. As observed by Oscar's sister Christina, the sweetsouled and tragically realistic demurrer to all overheated plaintiffs in the book: \"the money's just a yardstick isn't it. It's the only common reference people have for making other people take them as seriously as they take themselves,... Though money may be the currency of law according to Christina, the message of the book is that law itself is the debased currency of all social relationships. Anyone who has worked in a civil court knows that the clerk's office regularly receives pleadings filed by","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70537256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How to Realize the Value of Stare Decisis: Options for following Precedent","authors":"N. Varsava","doi":"10.2139/SSRN.3016053","DOIUrl":"https://doi.org/10.2139/SSRN.3016053","url":null,"abstract":"When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through--(1) follow the precedent, (2) overrule, or (3) distinguish--without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach--one that is sensitive to the contextual factors that make one method preferable to another. My analysis reveals the methodological challenges that courts must face if they wish to make good on the promise of stare decisis when they go about their business of following precedent. I conclude with the suggestion that we should be open to considering a no stare decisis regime; at least in some types of case, adherence to precedent comes with considerable costs and only tenuous benefits.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"30 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2017-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42227241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Jerome Frank, Lon Fuller, and a Romantic Pragmatism","authors":"Charles L. Barzun","doi":"10.2139/SSRN.2714027","DOIUrl":"https://doi.org/10.2139/SSRN.2714027","url":null,"abstract":"Jerome Frank and Lon Fuller are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote extensively about the nature of law and adjudication over roughly the same period of time (1930s-1950s), they are typically characterized as standing on opposite sides of the issues that matter most in legal theory. Frank is these days seen as an “extreme” realist, who thought judges decided cases on the basis of irrational biases, while Fuller is best known for being a critic of realism, a defender of natural law, and an influential member of the Legal Process school of legal thought, which is itself seen as a response to precisely those excesses of realism that Frank is said to epitomize.In this essay, I argue that when we place these two thinkers on opposite sides of the traditional lines drawn in legal theory – between realism and process theory, natural law and positivism, instrumentalism and formalism – we miss something important, and importantly similar, in their views about law, adjudication, and human knowledge. In particular, both thinkers maintained (1) that the human self was constituted by a mix of impulses, intuitions, emotions, motives and purposes, only some of which are conscious but all of which shape how the mind perceives the external world; (2) that such motives in judges are activated by the facts of particular cases in a way that can, at least sometimes, serve as the basis for just decisionmaking; and, finally, (3) that the first two observations provide a foundation for legal knowledge of the sort judges properly rely on when deciding cases. I conclude by suggesting that we might think of these common themes as reflecting a “romantic” strain of legal and philosophical pragmatism.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"29 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68268595","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Concept of \"Religion","authors":"Aaron R. Petty","doi":"10.1163/9789004299320","DOIUrl":"https://doi.org/10.1163/9789004299320","url":null,"abstract":"","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/9789004299320","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64523104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Riddle of Ruth Bryan Owen","authors":"Daniel B. Rice","doi":"10.2139/ssrn.2628790","DOIUrl":"https://doi.org/10.2139/ssrn.2628790","url":null,"abstract":"This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan, and a pioneering figure in her own right. But the Expatriation Act of 1907 stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Yet Owen’s defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. Because Owen had been a naturalized citizen for only three years at the time of her 1928 election, the House faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?Owen’s case demonstrates that the perceived clarity of even “mathematical” constitutional provisions can be shaped by purposive and pragmatic considerations extraneous to the text, considerations that often change in light of freshly received facts. This Article also presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination soon after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for modern sex-discrimination doctrine. And as Owen’s case shows, historical practices repugnant to the modern constitutional order should never be accorded residual legal effect. This Article accordingly criticizes the Supreme Court’s plurality opinion in Kerry v. Din (2015) for citing the Expatriation Act to downplay an asserted liberty interest’s historical pedigree under the Due Process Clause.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"29 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2015-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68231438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whose Truth? Objective and Subjective Perspectives on Truthfulness in Advocacy","authors":"W. Wendel","doi":"10.2139/SSRN.2563767","DOIUrl":"https://doi.org/10.2139/SSRN.2563767","url":null,"abstract":"A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information. It is exactly in this respect, however, that the theory of legal ethics is relatively under-developed. In recent years, legal ethics scholarship has changed its emphasis from ordinary first-order morality to a consideration of issues in democratic theory and legal philosophy. Focusing on the legitimacy of norms established through democratic political processes has yielded a robust theory of ethics with respect to the content of law: Ethical lawyering requires understanding the content of legal rules not from the Holmesian bad man perspective of “what can I get away with,” but from the point of view of the law as it would be understood by an impartial member of an interpretive community. The question to be considered in this paper is, if one believes that being an ethical lawyer has something to do with democratic legitimacy and the authority of law, what practical stance must a lawyer take with respect to facts? The answer to this question depends on the perspective one takes on the relationship between the role of lawyers as advocate and the contribution made by advocacy to legal legitimacy. Almost every scholar who has considered the problem of connecting ethical prescriptions for lawyers with considerations of political legitimacy, including Geoffrey Hazard and Dana Remus, Daniel Markovits, William Simon, and David Luban, has argued for a subjective perspective, so that the most important criterion for legitimacy is whether the legal system has taken into account the story the client wishes to tell. Using several case studies, I argue in this paper for the unpopular, unloved objective perspective, with the central criterion of legal legitimacy being what is the case, based on both law and facts – i.e. whether the client does or does not have a legal entitlement to do what is in her interests. Political legitimacy depends on adhering to ideals of truthfulness in politics. The alternative, subjective perspective on the relationship between legitimacy and advocacy, although emphasizing the extremely important value of human dignity, ultimately leads to a cynical, bullshitty (in Harry Frankfurt’s sense ) style of advocacy that undermines its own claim to political legitimacy.My argument is not that lawyers have a direct obligation to seek the truth. Our adversarial system of litigation presupposes that each party and her advocate will hav","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"28 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2015-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68205636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Concept of 'Religion' in the Supreme Court of Israel","authors":"Aaron R. Petty","doi":"10.2139/ssrn.2374404","DOIUrl":"https://doi.org/10.2139/ssrn.2374404","url":null,"abstract":"In this Article, I suggest that “religion,” both as it is commonly understood, and as it is understood and applied by courts as a legal term of art, refers chiefly to belief, and that this understanding of “religion” is incorrectly, if tacitly, assumed to be both neutral and broadly applicable. I focus on three leading cases in the Supreme Court of Israel addressing the question “who is a Jew?” As Judaism is the dominant religion in Israel, how Israeli courts understand “who is a Jew” in a legal context says a great deal about how the Court understands “religion” more generally. The Court’s discussion reveals factors that the courts would find relevant in deciding what makes a religion a religion. I explore how this question has been answered and what the shape of the legal discourse has been in responding to that question, what assumptions have been made, and what factors have been determinative. The Article concludes that the Court has imported a Christian understanding of “religion” into Israeli civil jurisprudence under the mistaken assumption that such an understanding of religion is “secular.” It then asks how such an understanding could come to be seen as universal, and suggests that while conceiving of religion as belief fits neatly in the context of Christian Europe, in which religion was subordinated to the state, both the idea of religion as belief and the separability of religion from the temporal political authority of the modern state present greater difficulties in the context of the Jewish experience.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"26 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2014-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68151706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Foolosophy of Justice and the Enigma of Law","authors":"P. Goodrich","doi":"10.1017/CBO9781139565783.006","DOIUrl":"https://doi.org/10.1017/CBO9781139565783.006","url":null,"abstract":"When lawyers use images in juristic texts, what is their legal meaning? Specifically, when legal texts print pictures of Justice and of Justice blindfolded, as they did particularly in the sixteenth century in legally authored emblem books and works of doctrine, then what is their significance for lawyers? And more specifically still, what is the proper interpretation of the blindfold, which we find not only on Justice (Justitia) but also on juristic representations of Cupid, Fate (Fortuna), bridegrooms, and the condemned? My answer, I will not tease or otherwise keep you waiting, is that the image of Justitia is technically an aenigma iuris, a legal symbol whose referent has been forgotten.2 My initial proof, my text, my image, will be a paradoxical one taken from a legal treatise, Barth6lemy Aneau's Jurisprudentia, a somewhat hagiographical history of jurisprudence first published in 1554. My focus will be on the figure of Justitia used immediately following a textual discussion of mythological sources of legal rule and of the homines sacer, the holy interpreters of law. While I will show that the figure, which pictures Justitia on a pedestal, sighted and reading from a book of the laws to an audience of blindfolded lawyers, is paradoxically a didactic and moralizing excursus in political theology, there is a further","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"24 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2013-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781139565783.006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57117408","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-Presenting Justice: Visual Narratives of Judgment & the Invention of Democratic Courts","authors":"J. Resnik, Dennis E. Curtis","doi":"10.2139/SSRN.2029698","DOIUrl":"https://doi.org/10.2139/SSRN.2029698","url":null,"abstract":"This essay – and the thirty images included – reflect themes in Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, in which we explored the relationship, over centuries, between courts and democracy. We argue that courts as we know them today are recent inventions. The constitutive elements – open access, independent judges authorized to sit in judgment of the state and to assess the fairness of their own as well as other decision-making procedures, equal and dignified treatment of all participants – are outgrowths of social movements that transformed the meaning of legal “personhood,” the idea of justice, and the obligations of government. Yet the new equality puts pressure on the visual displays within courthouses, often marked as such by a statute of the Virtue Justice. As women and men of all colors gained recognition as rights holders, entitled to sue and be sued, to testify, and to judge, a female figure of Justice, became less an abstraction and more a representation of a person. But who should decide how “she” – Justice – is to look? Once, elite groups of rulers and patrons controlled commissions – filling courthouses with portraits of elder statesmen along with the draped (or naked) female figure of Justice. In contrast, during the twentieth century, conflicts over Justice’s color and shape came to the fore. Protests, detailed below, erupted in the 1930s about a “mulatto” Justice in a federal courthouse in Aiken, South Carolina. The result was to put the image behind drapes. In contrast, in the same era, a mural on the Ada County Courthouse in Idaho displayed an “Indian” with hands tied behind his back and about to be strung up by gun-carrying men. Pressures of another kind are undermining the public and didactic practices of adjudication. Democracy has not only changed courts but also challenged them profoundly. Egalitarianism poses deep problems for polities that have thus far been unwilling to commit the resources that would support all the adjudicatory opportunities promised. As the ranks of rights holders expanded, nations responded not only by creating more judgeships and more courthouses but also by moving some forms of adjudication offsite, to administrative tribunals and to procedures that have come to be known by the acronym ADR – alternative dispute resolution. The resulting fragmentation and privatization of adjudication has profound implications for the democratic character of courts. The movement away from public adjudication is a problem for democracies because adjudication has important contributions to make to democracy. By democracy, we speak not of majoritarian political processes but rather of aspirations for lawmaking through egalitarian methods that foster popular input into governing norms and impose robust constraints on both public and private power. Furthermore, by courts, we focus on the quotidian activities of ordinary litigation rather than only on the outcomes ","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"24 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2012-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67867350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Courthouse Iconography and Chayesian Judical Practice","authors":"William H. Simon","doi":"10.2139/SSRN.2014153","DOIUrl":"https://doi.org/10.2139/SSRN.2014153","url":null,"abstract":"This contribution to a symposium on Judith Resnik and Dennis Curtis’s Representing Justice considers what courthouse imagery and design might be appropriate for “Chayesian” judicial practice. The imagery and design that Resnik and Curtis examine largely connotes traditional litigation - lawsuits that are bi-polar, retrospective, and self-contained. However, judicial practice is increasingly Chayesian - concerned with forward-looking efforts to coordinate multipolar problems with sprawling party structures. Traditional iconography is inadequate to Chayesian practice because it celebrates equilibrium and communicates information about cases one-by-one. By contrast, Chayesian intervention often induces productive disequilibrium and it can only be made transparent through expression that aggregates information across individual claims. I suggest that a promising source of inspiration for an iconography of Chayesian practice would be modern factory design in the style associated with the Toyota Production System. Toyota-style manufacturing has produced a self-conscious and sophisticated set of visual principles designed to express and implement the disequilibrating and aggregating features that the Toyota approach shares with Chayesian judicial practice.","PeriodicalId":90770,"journal":{"name":"Yale journal of law & the humanities","volume":"24 1","pages":"19"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852473","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}