Jurisdiction Commons^™

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing …

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Conflicting Federal And State Medical Marijuana Policies: A Threat To Cooperative Federalism, Todd Grabarsky

Todd Grabarsky

The legal status of medical marijuana in the United States is something of a paradox. On one hand, federal government has placed a ban on the drug with no exceptions. On the other hand, over one-third of the states have that legalizes the cultivation, distribution, and consumption of the drug for medical purposes. As such, the usage of medical marijuana is an activity that is at the same time proscribed (by the federal government) and encouraged (by state governments through their systems of regulation and taxation). This Article seeks to shed light on this unprecedented nebulous zone of legality in …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan

John R Ablan

When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …

Privacy, Transparency & Google's Blurred Glass, Jonathan I. Ezor

Jonathan I. Ezor

No matter the context or jurisdiction, one concept underlies every view of the best practices in data privacy: transparency. The mandate to disclose what personal information is collected, how it is used, and with whom and for what purpose it is shared, is essential to enable informed consent to the collection, along with the other user rights that constitute privacy best practices. Google, which claims to support and offer transparency, is increasingly opaque about its many products and services and the information they collect for it, posing a significant privacy concern.

Teaching U.S. V. Windsor: The Defense Of Marriage Act And Its Constitutional Implications, Corey A. Ciocchetti

Corey A Ciocchetti

Students are captivated by contemporary, high-profile Supreme Court cases. They recognize the litigants featured on the news, they debate the public policy, sociological and other real world implications of the arguments in school and their peers and parents prod them to discuss their opinions outside of class. I incorporate very recent and noteworthy Supreme Court cases in my legal studies courses with great success. My students are more engaged and prepared than when I assign a textbook chapter (students would rather track the law as it develops in real time). They tend to recall the arguments and legal theories well …

Teaching The U.S. V. Windsor Same Sex Marriage/Equal Protection/Doma Case, Corey A. Ciocchetti

Corey A Ciocchetti

The same sex marriage cases are proving to be the hottest of topics during a very eventful Supreme Court term. The U.S. v. Windsor case is a fitting vehicle to cover the topic. These slides help tell the story and can be used to teach the case as well as important constitutional law issues such as: (1) equal protection, (2) federalism, (3) executive discretion to defend federal laws, (4) incorporation and more.

Article Iii: Cases & Controversies - Teaching The Already V. Nike Case, Corey A. Ciocchetti

Corey A Ciocchetti

Nike is the market leader selling athletic shoes worldwide. Already markets its products to a smaller segment of the athletic shoe market. These two companies battled at the intersection of the intellectual property, federal court jurisdiction and constitutional law. These slides help teach the Already v. Nike Supreme Court case. These slides cover issues such as Article III cases & controversies, intellectual property rights in trademarks and patents as well as mootness and standing doctrines.

Privacy And Data Protection In Business: Laws And Practices (Sample Chapters), Jonathan I. Ezor

Jonathan I. Ezor

In the fields of digital privacy and data protection in the business world, effective compliance and risk management require not only knowledge of applicable laws and regulations, but at least a basic understanding of relevant technologies and the processes of the company or other organization that is collecting and/or using the personal information or monitoring behavior. This book is structured to provide a framework for law and other students to both learn the law and place it in the necessary technological and practical context, divided into topic areas such as children’s privacy, health information, governmental requirements, employee data and more. …

Less Than Meets The Eye: Anti-Discrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

Justin Schwartz

The conventional wisdom is that the Supreme Court's interpretation of the Eleventh Amendment since City of Boerne has raised the bar for Congress to pass anti discrimination legislation and made it far more difficult for plaintiffs to sue the states and state agencies. I show, by close analysis of the Court's case law on state sovereign immunity and Congress' Section 5 power to abrogate that immunity, that this is a misreading.

As the jurisprudence developed from Boerne, Kimel (age discrimination) and Garrett (disability discrimination in employment) to Hibbs (sex discrimination) and Lane (disability discrimination in public accommodations), the Court has …

The Lingering Influence Of Richard Ii And Lord Coke In The American Admiralty, Graydon S. Staring

Graydon S. Staring

It must be fair to say that a useful commercial and legal regime should be spread as wide as its usefulness, with as few artificial and irrelevant barriers as possible. All of our irrelevant barriers have been discredited in various situations, but two of them, viz. as to contracts made on land or to be performed in part on land, remain anomalously in two irrational and inconvenient applications. As they have no statutory sanction, they can be corrected by the courts, just as they have nullified them both in other situations and rationalized the jurisdiction in other respects. Cease the …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Erin Ryan

As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …