JournalTOCs

Washington University Jurisprudence Review
Number of Followers: 3

This is an Open Access Journal

Open Access journal
ISSN (Print) 2160-2352
Published by Washington University in St. Louis

[4 journals]

American Law as Art: An Aesthetic Judgment
- Authors: Abe C. Hester
  Abstract: If legal documents are literature, and all art can be assessed via aesthetic theories, what insights can aesthetic theory grant us about increasing access to United States Code' That question is what this Note seeks to address. This Note begins by explaining the foundations of aesthetic theory, explaining the origins of the term, and contrasting two early approaches to aesthetics developed by Alexander Baumgarten and Immanuel Kant, respectively. Then, after arguing that legal codes are a form of legal literature, the Note uses Dennis Dutton’s aesthetic universals and Kant’s aesthetic principles to develop a framework for judging a legal code as an artwork. Finally, the Note compares United States Code with the United States Constitution to try and discern why the latter is more appreciated than the form, with the hope that such an interrogation can help us reformat United States Code into a more accessible, and ultimately more interesting, legal work.
  PubDate: Sat, 16 Jan 2021 15:33:46 PST
Fossil Fuels, Takings, and Rawlsian Justice
- Authors: Michael Stone
  Abstract: Effective regulation of the fossil fuel industry is a difficult problem, made more complicated by the possibility that such regulation may be interpreted as a taking under the 5th Amendment. This means that any potential regulation of fossil fuel extraction potentially exposes the federal government to large financial liability. This Note will demonstrate why John Rawls’s Theory of Justice ought to inform the measure of compensation for takings. Then it will apply Rawls and the existing takings cases to show that the value of fossil fuel deposits for the purposes of compensation for a taking should be zero.
  PubDate: Sat, 16 Jan 2021 15:33:37 PST
A Match Made in Antitrust Heaven' A Liberalistic Exploration of the
Medical Match's Antitrust Exemption
- Authors: Melissa Mayeux
  Abstract: In the 2004 case Jung v. Association of American Medical Colleges, a group of resident physicians brought a class action suit challenging the legality of the National Residency Matching Program, a system that controls essentially all appointments to medical residency programs. The plaintiffs claimed the Match artificially depressed wages and created an anticompetitive labor market. The lawsuit was met with a swift end by the codification of an antitrust exemption to the Match. Although the Jung case is over, medical residents continue to face unreasonable restraints on their liberty. This note begins with an overview of medical education and the residency match process and details the Jung litigation and resulting antitrust exemption. Then, the focus shifts to a philosophical exploration of classic ideas of liberty and how the Match contradicts theories of classical liberalism and economics. Finally, the note concludes with proposed alternatives and modifications that can be implemented to improve the Match process and working conditions of medical residents.
  PubDate: Sat, 16 Jan 2021 15:33:27 PST
The Gold Standard: Legal Theory and Fuller Revisited
- Authors: Emanuel Tucsa
  Abstract: Just as King Midas had the ability to turn everything he touched into gold, the law can turn everything that it touches into law. This Midasinspired approach to jurisprudence offers a conceptually sophisticated account of legal positivism that should dissolve the debate between inclusive legal positivists and exclusive legal positivists. Yet, not everything that glitters is gold. Despite the explanatory achievements of the Midas approach, it misses crucial aspects about the nature of law. In particular, it overlooks law’s internal morality, which is identified in the work of American legal philosopher Lon Fuller and illustrated through Fuller’s cautionary tale of another king: Rex. Accordingly, my goal in this Article is twofold—to explore the strengths of the Midas approach to legal theory and to critique its foundations using the insights of Lon Fuller’s legal theory.
  PubDate: Sat, 16 Jan 2021 15:33:18 PST
Does Criminal Responsibility Rest Upon a False Supposition' No
- Authors: Luke William Hunt
  Abstract: Our understanding of folk and scientific psychology often informs the law’s conclusions regarding questions about the voluntariness of a defendant’s action. The field of psychology plays a direct role in the law’s conclusions about a defendant’s guilt, innocence, and term of incarceration. However, physical sciences such as neuroscience increasingly deny the intuitions behind psychology. This paper examines contemporary biases against the autonomy of psychology and responds with considerations that cast doubt upon the legitimacy of those biases. The upshot is that if reasonable doubt is established regarding whether psychology’s role in the law should be displaced, then there is room for future work to be done with respect to the truth of psychology’s conclusions about criminal responsibility.
  PubDate: Sat, 16 Jan 2021 15:33:08 PST
Doctrines of Discovery
- Authors: Douglas Lind
  Abstract: The idea that “discovery” of unknown lands carried with it the right to assert sovereignty and claim ownership was widely used by European sovereigns during the age of modern colonialization to justify appropriating indigenous lands. Felix Cohen’s pioneering work in the 1940s on federal Indian law made discovery a matter of jurisprudential interest and highlighted its role in advancing the English colonial empire in what became the United States. Specifically, Cohen argued that the natural law right of discovery, as formulated by Spanish philosopher Francisco de Vitoria, helped facilitate the early European settlement of the American colonies and became a bedrock of federal Indian law. Today, legal scholars in the United States and elsewhere across the former British Empire view discovery as a discredited idea that contributed painfully to the displacement of indigenous peoples. That scholarship is incisive and valuable. Yet it contains a characteristic feature which exposes a serious flaw in Cohen’s work. The characteristic feature is the treatment of discovery as an idea manifested in a single “Doctrine of Discovery” purportedly accepted as a principle of international law influencing European adventurism beginning in Iberia during the Renaissance and continuing throughout the colonial era. The serious flaw is that this single doctrine of discovery thesis originated with Cohen and is mistaken. In this paper, I question Cohen’s claims about the influence of Vitoria’s right of discovery on United States federal Indian law. More generally, I question the thesis that a single doctrine of discovery held sway for centuries in international law guiding European exploration and appropriation of indigenous lands. I argue that the history of jurisprudential thought and legal decision does not support the single discovery doctrine thesis. Rather, the idea of discovery appeared in a number of distinct theories favored by European powers in different ages and geopolitical contexts. I identify and distinguish four different discovery doctrines: (1) the medieval papal theory of discovery which helped spread Christianity across Europe and beyond beginning in the Middle Ages; (2) the natural law right of discovery begun by Vitoria in the 1530s and refined by later philosophers writing in the traditions of natural law and the law of nations; (3) the form the idea of discovery took with the United States Supreme Court early in the nineteenth century; and (4) the discovery theory of terra nullius employed by the British in settling Australia. I conclude that carefully distinguishing the different ideas of discovery is necessary to address and seek recompense for specific instances of indigenous dispossession and displacement.
  PubDate: Sat, 16 Jan 2021 15:32:59 PST
Paternalism as a Justification for Federally Regulating Advertising
e-Cigarettes to Children
- Authors: Alyssa N. Sheets
  Abstract: How the federal government should regulate e-cigarette advertising targeted towards children generates unique jurisprudential questions regarding the potential for infringement on children’s liberty and autonomy. While it would seem unethical to restrict e-cigarette advertisements to adults, children are in a different category because they lack the maturity and decision-making skills to discern advertising falsehoods from reality. This is especially problematic with e-cigarette advertisements because long-term public health outcomes for children are at stake. This Note assesses the historical and modern regulatory measures used by Congress, the FDA, and the judiciary to regulate how the tobacco industry may advertise to children. Then, using John Stuart Mill’s harm principle and idea of utilitarianism and Gerald Dworkin’s theory of paternalism, this Note postulates how the federal government might appropriately regulate advertising e-cigarette products to children. Finally, this Note proposes a two-step paternalistic policy for how Congress and the FDA can effectively regulate e-cigarette advertisements targeted to children and prevent further harm to America’s youth.
  PubDate: Sun, 26 Apr 2020 13:54:01 PDT
My Genetic Child May Not Be My Legal Child' A Functionalist
Perspective on the Need for Surrogacy Equality in the United States
- Authors: Rachel I. Gewurz
  Abstract: While assisted reproductive technology, and surrogacy in particular, may appear to be a straightforward solution to infertility, the legal field is extremely complex. The patchwork of laws across the United States leaves intended parents at risk for a court to deny legal rights to their biological child. This Note will examine the complexities of surrogacy agreements and the need for a federal, uniform surrogacy law under the sociological functionalist theory of society.
  PubDate: Sun, 26 Apr 2020 13:53:53 PDT
Corporate Rights and Moral Theory: The Need for a Coherent Theoretical
Justification of Corporate Rights
- Authors: Ryne T. Duffy
  Abstract: orporations are the primary engine of economic activity in the United States and they are provided with legal rights primarily to facilitate their productive activity. As economic actors, corporations must inevitably interact with other corporations and natural persons within the legal system. Corporations must be allowed to invoke legal rights in order to operate within the American legal system. Traditionally, the American legal system has classified corporations as legal “persons” to allow them to seamlessly integrate into the existing legal system. This Note tackles the question of corporate personhood utilizing an approach inspired by social contract theory and seeks to answer the fundamental question of what kind of person a corporation ought to be considered. From this initial conclusion, this Note will address the legal implications of the chosen rights justifying theory and explore alternate options.
  PubDate: Sun, 26 Apr 2020 13:53:45 PDT
The Perfect Opinion
- Authors: Andrew Jensen Kerr
  Abstract: In my Article, "The Perfect Opinion," I collate favorite judicial opinions to inductively derive an archetype of perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied preferences for creative judging that might not register on citation counts or be prioritized when editing casebooks. Importantly, our choice of a favorite reflects something about us. So why do judges often select non-authoritative opinions (alternative concurrences or dissents) or no- citation opinions (that don’t cite to prior case law) when asked of their favorite opinion' We might predict that most judges would select, for example, a Justice Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable turn in the doctrine.Instead, it seems that at least some judges share a critical perspective that citation is a masking device, and regard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on the nature and use of authority, this topic remains under-theorized. I contribute to this literature by making a novel observation about implicit authority. Judges who rely on principled reasoning are making both an empirical claim that these principles inform our positive law, and a normative claim that these principles are in fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we typically work with. This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write so effortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed the herculean moment. This Article searches for it.
  PubDate: Sun, 26 Apr 2020 13:53:37 PDT
Another Quest for the Holy Grail of Law: Ius Generis - Law as a
Countermovement to Human Cognition
- Authors: Norbert Altvater
  Abstract: In hopes of providing some possible further insight into the nature of law in all contexts, this Article contributes another layer to the discussion respecting an evolutionary ontology of law. It advances a preliminary sketch of the possible genesis of norms as a countermovement to human cognition, with law, as a type of norms thereby integrally interwoven into humanity itself. With this understanding of its origins, law, whether considered from the positive law, natural law or systems theory perspective, may be understood more clearly and its applications perhaps anticipated. This Article analyzes whether this proposed countermovement theory might provide common threads between it and existing epistemologies. Implicit is that legal and non-legal norms are interrelated in humanity. This interrelationship will affect any attempt to transport law from one society to another and may explain the lack of success in transporting law as was attempted by the law and development movement. Anticipating this interrelationship might then result in better implementation of the rule of law worldwide.
  PubDate: Sun, 26 Apr 2020 13:53:29 PDT
Testamentary Freedom Vs. the Natural Right to Inherit: The Misuse of
No-Contest Clauses As Disinheritance Devices
- Authors: Alexis A. Golling-Sledge
  Abstract: Testamentary freedom is the bedrock of inheritance law. The freedom is curbed in some respects in order to allow spouses and other groups access to an estate. However, there is no restriction on a parent's ability to disinherit their children. This note is a critique of the permitted disinheritance of children in the name of testamentary freedom. According to John Locke, the right to inherit emanates from natural law and should be recognized as such. Through forced heirship, as recognized in other modern nations, the U.S. can respect the natural right of children to inherit and leave room for testamentary freedom. Forced heirship can alleviate the unjustifiable harms imposed on adult children and preserve familial relationships after the death of a parent. Until forced heirship is recognized, disinherited beneficiaries seeking access to an estate must navigate around laws governing no-contest clauses, devices that are often used to disinherit children. In California, that path is through its probable cause exception to no-contest clauses and the intentional interference with an expected inheritance tort. Until forced heirship is recognized, courts should not permit no-contest clauses to effectuate disinheritance but restrict enforcement of no-contest clauses for protecting estates from complicated ownership disputes and outsiders attempting to gain access to an estate.
  PubDate: Fri, 10 Jan 2020 12:03:52 PST