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Literary Influence on Legal Philosophy: A Comment on Professor Meyler’s Cardozo's Literary Precedents
No full textVol. 34-1What shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain their temperament and style much the same way as the rest of us—which is how, exactly? Do we soak up influences like sponges? Or do we spring forth like Athena, our outlook and predilections mostly formed, and find in outside influences that which we want to see? I am not qualified to answer these questions, about either judges or people in general, yet they are the questions that Bernadette Meyler’s lovely piece on Cardozo’s Literary Precedents prompts for me. I will suggest here that Meyler’s piece identifies and rejects some bad answers to these questions and also hints at some more intriguing possibilities
Environmental Law for the 21st Century
No full textIn the article, the authors discuss the existing paradigms of environmental laws in the U.S. that are based on economics and traditional law. Other topics include the conventional economic approach to externalities in the efforts to enhance environmental protection efforts, and the differences between liability rules and property rules
Mormon Property
No full textQuintin Johnstone Prize in Real Property Law.
Established by the CATIC Foundation.
T. Zhang, C. Priest
To the student in his second or third year at the Law
School who has demonstrated excellence in the area of
real property law.For most of the latter half of the nineteenth century, the American government fought desperately to rein in the Mormons in Utah. Narratives about this conflict generally treat it as one centered on polygamy or tensions between religion and the state. This paper, however, considers the central role of competing visions of property and property law in the Mormon-American conflict.
It explores how the Mormon property system was not only a driver of the conflict but also one of the Mormons’ most important tools in attempting to subvert and overcome the American legal system. In particular, it outlines how the Mormons treated group identity and community standing as a property asset in order to govern through ecclesiastical structures independent of state authority. This historical context offers three advantages.
(I) First, a framing centered on competing visions of property law sheds new light on the historical causes and drivers of the Mormon-American conflict and the drastic legal actions of the federal government, including those of the Supreme Court in several prominent decisions.
(II) Second, this novel historical framing provides a new throughline for understanding the evolution of the Mormon property system and underscores an overlooked irony in the development of Mormon history: in attempting to subvert “sole and despotic” Anglo-American property norms, the Mormons ultimately succumbed to the American property logic under increasingly elaborate property arrangements.
(II) Third, exploring the Mormon property system as one of law rather than merely religion inspires new appreciation for the role of non-state institutions in private ordering and enforcing property systems. At this level, this paper attempts to flesh out the story of the administration of property in Territorial Utah, under the law of consecration, as a case study in law without violence
Taking Experience Seriously: A Comment on Professor Zipursky’s Benjamin Cardozo and American Natural Law Theory
No full textVol. 34-1Commenting on a paper with which one profoundly agrees presents something of a dilemma. If intellectual progress requires anything like the adversarial method, then one feels a certain pressure to criticize. Yet scholarly scruples demand something more than devil’s advocacy. That is the dilemma I face in commenting on Benjamin Zipursky’s essay, “Benjamin Cardozo and American Natural Law Theory.”1 I am in deep sympathy with the essay’s core claim that a tradition of legal thought links Benjamin Cardozo to Lon Fuller and Ronald Dworkin. Indeed, I recently restructured my Jurisprudence class around that tradition.
My solution to the dilemma is to grasp ahold of both of its horns by offering a little criticism and then (I hope) some constructive engagement. I first draw a couple of distinctions that I think are important but which Professor Zipursky’s essay glosses over. I then suggest a way of developing further what I have characterized as the essay’s core claim. My suggestion is that the tradition to which Professor Zipursky has drawn our attention is older, broader, and more diverse than one might conclude after reading his essay. If that’s true, it does not undermine, or even diminish, Professor Zipursky’s core claim; to the contrary, it underscores the importance of Cardozo and of Zipursky’s account of his place in American legal thought
TEXTUALISM'S DEFINING MOMENT
No full textThe article examines the complexities of modern textualism, challenging the simplicity and objectivity promised by the interpretive theory. It identifies twelve categories of doctrinal and theoretical choices that often divide modern textualists, causing internal divisions within the Supreme Court. It further suggest that textualists need to better define their methodology, eliminating activist or idiosyncratic doctrines
The International Response to the U.S. Tax Haven
No full textVol. 48The Pandora Papers and recent empirical studies have revealed large movements
of capital from traditional tax havens to the United States in the past several
years. This Article examines the legal factors that have led to the rise of the
United States as one of the world’s preeminent tax havens and considers why
previous efforts have failed to change this emerging reality. Drawing upon the
U.S. enforcement model vis-à-vis financial institutions in other countries, this
Article proposes that several governments adopt a coordinated response of
engaging directly with U.S. financial institutions without requiring any action
from the U.S. government. This model response could be applied beyond tax to
resolve cooperation problems in other international settings
Restoring Indian Reservation Status: An Empirical Analysis
No full textVolume 40, Issue 1In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.
Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good or bad economic effects of altering existing jurisdictional relationships. One side raises a “parade of horribles.” The other contends that “the sky is not falling.” Yet, to date, there is hardly any empirical literature to ground these debates. Litigants have instead been forced to rely upon impressionistic reasoning and economic intuitions.
We evaluate these competing empirical claims by exploiting natural experiments: judicial rulings altering the status quo of Indian reservation status. Applying well-established econometric techniques, we first examine the Tenth Circuit’s Murphy v. Royal decision in 2017 and the Supreme Court’s McGirt v. Oklahoma decision in 2020, which both held that the eastern half of Oklahoma was in fact Indian country. To do so, we leverage monthly employment data at the county level, annual output data at the county level, and daily financial data for public companies incorporated in Oklahoma. Contrary to the “falling sky” hypothesis that recognition of Indian jurisdiction would negatively impact the local economy, we observe no statistically significant effect of the Tenth Circuit or Supreme Court opinions on economic output in the affected counties
PLAINTIFFS' PROCESS: CIVIL PROCEDURE, MDL, AND A DAY IN COURT
No full textThe article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts
Reliance Interests in Statutory and Constitutional Interpretation
No full textPeople and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public "reliance interests" are the "dark matter" of America's law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine. Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation--namely--textualism or original public meaning, legal process or purposivism, and cost-benefit economic theory. Because reliance interests themselves evolve, they can also provide an orderly process for updating old norms, under whatever the predominant theory of interpretation might be. Nonetheless, reliance interests do not always prevail. In recent statutory and constitutional decisions, the Roberts Court has applied traditional reliance interests selectively--a signal that the Court is introducing a regime change that may scramble reliance interests as massively as the New Deal and Brown Courts did in the last century. Without a strong electoral endorsement of the emerging new regime, this is risky for an institution whose authority depends on its rule of law credibility, and it is doubtful that the Roberts Court will be as successful in overcoming or resetting reliance interests as the New Deal and Brown Courts
Rediscovering The Nature of the Judicial Process: A Comment on Professors Abraham’s and White’s Doctrinal Forks in the Road
No full textVol. 34-1Sometime between 1918 and 1920, Dean Thomas Swan, with the approval of his faculty, invited Benjamin Cardozo to give the prestigious Storrs lectures at Yale Law School. The invitation was notable. After only a few years on the bench, Cardozo clearly had made a mark, in part thanks to his 1916 opinion for the New York Court of Appeals in the MacPherson case. Cardozo seems to have initially demurred but then, when asked if he could share his thoughts on how he went about the job of judging, agreed.
Cardozo lectured on four successive days in February 1921. According to Arthur Corbin’s well-known account, the first lecture was met with a standing ovation that subsided only when Cardozo left the room. The remaining lectures then were moved to a room twice as large that was filled to capacity, with Corbin reporting that attendees were “spell-bound.” Though perhaps embellished, this recounting is plausible. Cardozo was a powerful speaker. And, as I will suggest below, he delivered a message that audience members might had reason to find engaging