Jurisprudence Commons^™

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Sanksi Hukuman Mati Bagi Penyalahguna Narkotika Dalam Perspektif Ham Berdasarkan Konstitusi, Dharma Rozali Azhar D

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The death penalty is a legal act that is legitimized by the state. In the context of the constitution, the death penalty has created a contradiction in the norms in Article 28 I paragraph (1) and Article 28 J paragraph (1) and paragraph (2) which specifically focus on the right to life as a fundamental right that is very fundamental and divine in nature and the right to life of people. others who also may not be removed by anyone on purpose for any reason. The death penalty in the context of narcotics does not aim to repay crime for …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Politik Hukum Dalam Penegakan Hukum Di Indonesia, Anita Anita

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Law is a guide and rules related to the concept of social life and will always be in accordance with the conditions of society. Law is a demand to be able to provide justice, meaning that the law is always faced with the question of whether the law can bring about justice. In relation to the legal concept, legal politics is defined as an activity that determines the patterns and methods of shaping law, supervises the operation of the law, and reforms the law for the purposes of the State. Therefore, law is a determinant of politics, and is also …

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori

Touro Law Review

No abstract provided.

The Legal Significance Of Custom In The Halakhic Jurisprudence Of Rabbi Yechiel Mikhel Epstein’S Arukh Hashulchan, Shlomo C. Pill, Michael J. Broyde

Touro Law Review

No abstract provided.

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

'Gardens Of Justice': Australian Feminist Law Journal, 2013, Volume 39, Matilda Arvidsson, Leila Brännström, Merima Bruncevic, Leif Dahlberg

Matilda Arvidsson

FOREWARD: GARDENS OF JUSTICE

Matilda Arvidsson, Merima Bruncevic, Leila Brannstrom, Leif Dahlberg

Our Gardens of Justice special themed issue of the Australian Feminist Law Journal grew out of the 2012 Critical Legal Conference in Stockholm and its theme of Gardens of Justice, a conference organised by Matilda Arvidsson, Merima Bruncevic, Leila Brannstrom and Leif Dahlberg. We issued a Call for Papers early in 2013 in which several conference theme questions were repeated. We called for papers devoted to thinking about law and justice as a physical as well as a social environment. The theme suggested a plurality of justice gardens …

A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young

Faculty Scholarship

Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …

A Criminal Moment In Time, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

Criminal law jurisprudence considers the concepts of motive, intent and the forbidden act integral to the justice process. Throughout the common law jurisdictions, this trio overshadows a central theme that is a precursor to all criminal acts – the idea of a social responsibility continuum or cognitive dependency. While motive is dispositional on a wider application, intent is situational and is a product of one’s socio-cultural experience. The forbidden act, though central to the process, constitutes ‘a faithful mirror of thought’ – the consummation of a deliberate and manipulated cognition. The nexus between the three subjects extends beyond the Cartesan …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

A Note To Our Readers, The Editors

Touro Law Review

No abstract provided.

Listening To Tribal Legends: An Essay On Law And The Scientific Method, Nancy Levit

Faculty Works

Much of jurisprudence is storytelling, recounting tales of what has gone before; improvising and crafting new stories of legal theory from old ones. Useful kernels are passed from one generation of legal thinkers to the next. Like tribal legends, the messages in many stories of jurisprudence can be understood only by a select audience. Legends often come with morals; theories of jurisprudence often impart prescription for living within the law. Jurisprudence, like legends, concerns fundamental issues, confronts cosmic questions and weaves in magic. Sometimes both possess humor as well.

Unfortunately, some modern versions of jurisprudential theories have become anecdotal. The …

The Balance Sheet Of Law And Religion, Frank E. Horack Jr.

Articles by Maurer Faculty

No abstract provided.