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"state and law"
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Intersystemic Statutory Interpretation: Methodology as \Law\ and the Erie Doctrine
Do the Ene Doctrine and its \"reverse-Erie\" mirror require state and federal courts to apply one another's statutory interpretation methodologies when they interpret one another's statutes? Surprisingly, the courts have no consistent answer to this question — even though state and federal courts constantly interpret one another's laws. What's more, exploring this application oí Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation \"law,\" individual judicial philosophy, or something in between? This Article argues that many federal courts are getting the Ene question wrong—or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less \"lawlike\" than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as \"law\" and does not give them precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes — a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions.
Journal Article
Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty To Defend
Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. Instead, whether a state attorney general must defend state law turns on her own state's laws. Each state has its own constitution, statutes, bar rules, and traditions, and not surprisingly, the duties of attorneys general vary across the states. To simplify somewhat, we believe that there are three types of duties. One set of attorneys general has a duty to defend state law against state and federal challenges, while a second group has no duty to defend state law in such scenarios. A third cohort of attorneys general has a power (and in some cases a duty) to attack state statutes of dubious validity. They may (or must) proactively file suit to obtain judicial resolution of constitutional questions. Given that these duties vary across the states, politicians (including attorneys general) who blithely conclude that all state attorneys general must defend all state laws or, conversely, that all may refuse to defend whenever they believe a state law is unconstitutional evince a lamentable indifference to the power of states to craft an office that suits their particular needs. As the samesex marriage debate reveals, categorical statements about whether state attorneys general must (or must not) defend bars on same-sex marriage are usually little more than self-serving sound bites from elected, politically ambitious attorneys general, intended for constituents focused on policy outcomes rather than legal questions. With Democrats and Republicans squarely divided on issues like same-sex marriage, gun control, and campaign finance, we predict that attorneys general will increasingly seek political advantage by refusing to defend (or insisting on the defense of) laws that divide the parties. We also foresee that failures to defend will be especially likely to occur in states where the attorney general is of a different political party than the governor, legislature, or the preceding attorney general.
Journal Article
The Use of Dead Celebrities in Advertising and Marketing: Balancing Interests in the Right of Publicity
Celebrities have long been used in advertising and merchandising, but state law has evolved in recent decades to protect them from unauthorized uses, including, in some cases, unauthorized uses after their death. This paper examines the developing practice of using deceased celebrities in advertising and merchandising, including celebrities that have been \"reanimated\" using modern technology. It suggests that the law currently favors celebrity heirs over consumers and fans. It offers a proposal to balance the interests of heirs with those of consumers/fans by allowing postmortem protection of trademarks, copyrights, and authorized uses, but also allowing unauthorized uses unless they are likely to deceive consumers regarding authorization.
Journal Article
Sharia and the state in Pakistan : blasphemy politics
\"This book analyses the formulation, interpretation and implementation of sharia in Pakistan and its relationship with the Pakistani state whilst addressing the complexity of sharia as a codified set of laws. Drawing on insights from Islamic studies, anthropology and legal studies to examine the interactions between ideas, institutions and political actors that have enabled blasphemy laws to become the site of continuous controversy, this book furthers the readers' understanding of Pakistani politics and presents the transformation of sharia from a pluralistic religious percept to a set of rigid laws. Using new materials, including government documents and Urdu language newspapers, the author contextualises the larger political debate within Pakistan and utilises a comparative and historical framework to weave descriptions of various events with discussions on sharia and blasphemy. A contribution to the growing body of literature, which explores the role of state in shaping the religion and religious politics in Muslim-majority countries, this book will be of interest to academics working on South Asian Politics, Political Islam, Sharia Law, and the relationship of Religion and the State\"-- Provided by publisher.
Book
WHAT'S INSIDE AND OUTSIDE THE LAW?
In this article I take up a conceptual question: What is the distinction between 'the law' and the behavior the law regulates, or, as I formulate it, the distinction between what is 'inside' the law and what is 'outside' it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is 'inside' and 'outside' the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.
Journal Article
The fall and rise of the Islamic state
\"Noah Feldman tells the story behind the increasingly popular call for the establishment of the sharia--the law of the traditional Islamic state--in the modern Muslim world. Feldman goes back to the roots of classical Islamic law, under which executive power was balanced by the scholars who interpreted and administered the sharia. That balance was destroyed under Ottoman rule, resulting in the unchecked executive dominance that continues to distort politics in so many Muslim states. Feldman argues that a modern Islamic state could provide political and legal justice to today's Muslims through sharia--but only if new institutions emerge that restore this constitutional balance of power. In a new introduction, Feldman discusses developments in Egypt, Tunisia, Libya, and other Muslim-majority countries since the Arab Spring and describes how Islamists must meet the challenge of balance if the new Islamic states are to succeed.\"--P. [4] of cover.
Book
Legal nature of judicial practice
Objective:
a comprehensive theoretical and legal study of the nature of judicial practice.
Methods
: the methodological basis of the article is postclassical rationality, which allows studying judicial practice in the context of its impact on the public relations regulation and establishing the legal nature of this phenomenon. This determined the integration of methods developed in the legal science (formal legal, comparative legal methods, method of legal modeling) and other humanities (hermeneutical, discursive methods).
Results:
the article considers judicial practice as an individual legal regulation, i.e. the activities of the authorized judicial bodies of the state aimed at consideration and resolution of legal cases, as well as the creation of individual legal foundations for the lawful behavior of subjects of public relations. The authors proceed from the fact that judicial practice is a unity of cognition, activity, and result, as it actively participates in the construction of legal reality. This leads to the conclusion that judicial practice should be understood dichotomically – as the activity of judges, the result of which is the creation of individual and generalizing legal acts aimed at constructing a legal reality (a specific form of legal communication), and as a material source of law (a set of generalizing legal acts (positions of courts) that have a legal impact on the consciousness and behavior of an indefinite circle of subjects of the same name).
Scientific novelty
: in the article, for the first time in the Russian legal science, a study of judicial practice is transferred from the level of sectoral analysis to the philosophical-legal level. At the same time, the authors emphasize the interdisciplinary, general humanitarian nature of judicial practice. The analysis and interpretation of judicial practice are carried out at the ontological and axiological levels of legal reality. This allowed identifying the specific role of judicial practice in the legal system as a means of communication between individual and general legal regulation.
Practical significance
: the main provisions and conclusions of the article can be used in scientific and pedagogical activities when considering the essence and content of judicial practice and its role in the creation and functioning of the Russian legal reality, as well as for improving judicial activity at all levels.
Journal Article