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Racial Transitional Justice In The United States, Yuvraj Joshi 2023 Allard School of Law at the University of British Columbia

Racial Transitional Justice In The United States, Yuvraj Joshi

All Faculty Publications

For years, the United States government has endorsed transitional justice approaches abroad while ignoring the need for transitional justice at home. Recently, racial justice uprisings have shifted U.S.-based discussions of transitional justice, from gazing outward toward the international community to attending to the legacies of slavery, segregation, and white supremacy at home. This chapter demonstrates that the centuries-long oppression of Black Americans is precisely the kind of massive human rights violation that necessitates a systematic transitional justice response. Using historical, legal, and comparative analyses, it reveals that the United States has employed its own versions of transitional justice ...


Textualism And The Indian Canons Of Statutory Construction, Alex Tallchief Skibine 2022 University of Utah S.J. Quinney College of Law

Textualism And The Indian Canons Of Statutory Construction, Alex Tallchief Skibine

University of Michigan Journal of Law Reform

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the ...


Lower Court Originalism, Ryan C. Williams 2022 Boston College Law School

Lower Court Originalism, Ryan C. Williams

Boston College Law School Faculty Papers

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While ...


Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling 2022 Brigham Young University Law School

Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling

BYU Law Review

No abstract provided.


The Realities Of Takings Litigation, Dave Owen 2022 Brigham Young University Law School

The Realities Of Takings Litigation, Dave Owen

BYU Law Review

This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States ...


Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash 2022 University of Richmond

Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash

Indiana Law Journal

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward ...


Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson 2022 UC Davis

Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson

Indiana Law Journal

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme ...


The Notion Of Causation Under The New French Contract Law From The Traditional Function To A Tool For Controlling Contractual Balance, Dr. DELLAL Yazid, Taboukouyout Youcef 2022 Université Aboubekr belkaid , Tlemcen, Algérie

The Notion Of Causation Under The New French Contract Law From The Traditional Function To A Tool For Controlling Contractual Balance, Dr. Dellal Yazid, Taboukouyout Youcef

UAE University Law Journal مجلة جامعة الإمارات للبحوث القانونية

This paper analyses the recent reform of Contract Law in France under the Order n°2016-131 of February 10, 2016, modifying the French Civil Code provisions on Contract Law and the general regime and proof of obligations. The ‘causation’ was consecrated as a condition of contracts validity in the Napoleonic Code of 1804, it remained effective for two centuries despite its juristic controversy. The controversial notion of ‘causation’ has been removed from the Code which introduced ‘the contractual content’ as an essential condition in contracts. This study concludes that the abandonment of 'causation' in the recent reform of Contract Law ...


Oversight Over The Constitutionality Of The Legislative Acts Of The Executive Authority: A Comparative Study, Prof. Numan Al-Khatib, Prof. Laith K. Nasrawin 2022 Professor of Public Law - School of Law - Amman Arab University

Oversight Over The Constitutionality Of The Legislative Acts Of The Executive Authority: A Comparative Study, Prof. Numan Al-Khatib, Prof. Laith K. Nasrawin

UAE University Law Journal مجلة جامعة الإمارات للبحوث القانونية

This study deals with the constitutional oversight over the legislative acts, which are issued by the executive authority pursuant to the Jordanian Constitution. The study will shed the light on the nature of legal rules enacted by the Cabinet, with the approval of the King, and what extent they are subject to oversight by the Constitutional court. The legislation issued by the Executive authority are called regulations, which are of various types: independent, executive and legislative (Temporary Laws), in addition to the administrative instructions that are passed in normal circumstances. Defense orders are also legal rules issued by the Prime ...


Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown 2022 The University of Akron

Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown

ConLawNOW

This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.


Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr. 2022 Pepperdine Caruso School of Law

Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.

Washington and Lee Law Review Online

This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among ...


Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger 2022 University of Louisville

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.


Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh 2022 The University of Akron

Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

ConLawNOW

Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the ...


Solving The Congressional Review Act’S Conundrum, Cary Coglianese 2022 University of Pennsylvania Carey Law School

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued ...


Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh 2022 University of Washington School of Law

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has ...


An Analytical Study On Legal Validity Of Online Dispute Resolution (Odr) System In India And Indonesia, Dr Rahul Nikam, Bangkim Singh Nongthombam 2022 Faculty of Law, Marwadi University

An Analytical Study On Legal Validity Of Online Dispute Resolution (Odr) System In India And Indonesia, Dr Rahul Nikam, Bangkim Singh Nongthombam

Indonesia Law Review

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism ...


Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose 2022 Northwestern Pritzker School of Law

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included ...


Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana 2022 Northwestern Pritzker School of Law

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening ...


Sacrificing The Public's Health: Conspiracies And Trust In The Scientific Enterprise, Katherine Drabiak 2022 University of St. Thomas, Minnesota

Sacrificing The Public's Health: Conspiracies And Trust In The Scientific Enterprise, Katherine Drabiak

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


An International Law Perspective On Political Informational Warfare: The Challenges Of Combating The Weaponized Use Of Conspiracy Theories And Disinformation To Undermined Democracy, Kimberly Breedon 2022 University of St. Thomas, Minnesota

An International Law Perspective On Political Informational Warfare: The Challenges Of Combating The Weaponized Use Of Conspiracy Theories And Disinformation To Undermined Democracy, Kimberly Breedon

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


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