Jurisprudence Commons^™

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Dalhousie Law Journal

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Helm's School of Government Conference

Although only four departments at the United States’ founding, the American bureaucracy has expanded to address nearly every issue of public life. While these agencies are ostensibly under congressional oversight through monetary allowance and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founders’ design of legislative power vested solely in a bicameral legislature.

The Supreme Court holds an indispensable role in mitigating the overreach of bureaucratic agencies. However, despite their obligation to protect the rights of the American people, the courts’ inability to hold bureaucrats accountable has diluted …

Dignity And The Promise Of Conscience, Duane Rudolph

Cleveland State Law Review

This Article focuses on the relationship between three specific invocations of dignity in American law, whose emphases are different. The first appeared in the late eighteenth century and is concerned with the dignity of a state or sovereign. The second made its appearance at the beginning of the nineteenth century and is devoted to the dignity of the court. The third is concerned with the dignity of the human person. International instruments and foreign constitutions evoked dignity in this sense in the 1930s and 1940s. In the United States, the Restatement of Torts, First evoked this sense of the term …

Applying Bentham's Theory Of Fallacies To Chief Justice Roberts' Reasoning In West Virginia V. Epa, Dana Neacsu

Law Faculty Publications

This essay summarizes the Court’s decision in West Virginia v. EPA. It also analyzes Chief Justice Robert’s reasoning and addresses the case’s flaws from two perspectives. It references the Court’s decision connecting it to the so-called New Deal Cases, because in both Panama Refining Co. v. Ryan, and West Virginia v. EPA, the Court accepted to review a lower court’s decision about a non-existent regulation. In 1935, the governmental kerfuffle was due to a lack of regulatory transparency; the Federal Register had yet to be established. This essay’s analysis incorporates Jeremy Bentham’s 1809 work on two classes of fallacies, authority …

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner

Law Faculty Publications

The power of federal courts to act is circumscribed not only by the limits of subject matter jurisdiction, but also by various justiciability doctrines. Article III of the Constitution vests the judicial power of the United States in the Supreme Court and such inferior courts as Congress creates. That power is limited to deciding cases and controversies. It does not permit federal courts to provide advisory opinions when there is not a real dispute between the parties. Based on that constitutional limit, and related prudential concerns, the Court has developed a variety of justiciability requirements limiting which cases can be …

Pdf Killed The Copier Star: Modernizing The Access To Sources Of Proof Factor In A 28 U.S.C. § 1404(A) Transfer Analysis, Kyle L. Dockendorf

Texas A&M Journal of Property Law

With digital solutions to document storage, non-physical sources of evidence will become increasingly relevant for different types of legal actions. For patent proceedings, where evidence is often electronic, the need for a clearly defined approach to analyzing physical and electronic evidence has appeared within the first private factor of a 28 U.S.C. § 1404(a) transfer analysis. The evidentiary factor evaluating non-witness evidence—the access to sources of proof factor or first private factor—was interpreted by the Fifth Circuit when faced with weighing electronic evidence in favor, or against, potential transfer venues. Fifth Circuit precedent—relied upon in other circuit court opinions and …

Cultural Identity And Territorial Autonomy: U.S. Virgin Islands Jurisprudence And The Insular Cases, Dolace Mclean

Fordham Law Review

This Essay utilizes the lens of postcolonial theory to analyze the development of U.S. Virgin Islands jurisprudence. This Essay asserts that the United States’s acquisition of the territory served the purpose of helping to construct an American narrative of moving from colony to colonial power that surpassed its European forebears. The colonial narrative is fractured by instances of the Supreme Court of the Virgin Islands re-narrating territorial space by utilizing legal principles that are informed by local cultural expressions. Consequently, Virgin Islands jurisprudence is transformed from “colonial dependent” to “postcolonial independent” based on intersectional, progressive principles.

Visible And Invisible: The Case For A Territorial Reporter, Joseph T. Gasper Ii

Fordham Law Review

This Essay discusses the relative invisibility of opinions issued by America’s territorial courts. Today, there is no territorial reporter that publishes the decisions of these courts, making it difficult, if not impossible, to find territorial case law. The absence of a territorial reporter excludes Territories from the national legal community and obscures the efforts of past judges and justices who grappled with the same administrative and constitutional challenges which American Territories face today. To remedy this issue, this Essay argues that it is time for a dedicated territorial reporter.

The Move Toward An Indigenous Virgin Islands Jurisprudence: Banks In Its Second Decade, Kristen David Adams

Fordham Law Review

In 2011, the Supreme Court of the U.S. Virgin Islands decided Banks v. International Rental & Leasing Corp. and, with that decision, introduced a new era in Virgin Islands jurisprudence that embraced a much more active role for Virgin Islands courts and a correspondingly diminished role for the American Law Institute’s restatements. This Essay examines what I will call “second-generation” decisions referencing Banks with the goal of determining whether Banks and its progeny have met, or are at least in the process of meeting, “the goal of establishing ‘an indigenous Virgin Islands jurisprudence’” set by the Banks court. Ultimately, this …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Conspiracy Theory Belief And The Case For Abolishing The Insane Delusion Doctrine, Payton Yahn

University of St. Thomas Journal of Law and Public Policy

No abstract provided.

Fugitive Pull: Applying The Fugitive Disentitlement Doctrine To Foreign Defendants, Zachary Z. Schroeder

Washington Law Review

Defendants force courts to decide whether to use judicial time and resources to hear a case when they either flee or refuse to submit to jurisdiction. Judges in the United States possess an exceptional discretionary power to deny access to the courts in these circumstances through the fugitive disentitlement doctrine. The fugitive disentitlement doctrine developed as federal common law and permits courts to exercise discretion in declining to hear appeals or motions from defendants classified as fugitives from justice.

Historically, the fugitive disentitlement doctrine was intended to prevent courts from wasting resources adjudicating cases when a defendant has fled and …

University Grievance Procedure Pertaining To Exam Results: Its Concept, Legitimacy, And Procedural Mechanism Under Islamic Jurisprudence, Asma Salmeen Al-Aryani Dr.

UAEU Law Journal

The research deals with an important topic that has not previously been raised in the jurisprudence arena, which is the university grievance. University grievance is one of the rights of the student who demands reconsideration of his/her test paper because he/she is not satisfied with the degree awarded. This topic is related to jurisprudential rulings and their implications. This research aims to explain the mechanism for dealing with them and their results, whether they are in the interest of the student or against him/her. The research followed two approaches: Descriptive (analytical and deductive) approach and inductive approach. The research concluded …

The Legal Contribution To Democratic Disaffection, Brian Christopher Jones

Arkansas Law Review

This Article proceeds in three main parts. Part II describes the origins and definitions of democratic disaffection and questions why the law may have been marginalized when studying the phenomenon. Part III explores the different possible relationships between law, politics, and democratic disaffection by looking at both how courts may contribute to but also counter disaffection. Part IV articulates some of the democratic distancing measures the law has engaged in over the past few decades and questions whether such distancing may be stopped. The Article concludes by suggesting that law should acknowledge and accept its impact on democratic disaffection, and …

Invisibility And Dis-Identification Of Algerian Women: Feminist Jurisprudence Eyes On The Legal Provisions Related To Personal Status And Criminal, Sophia Lina Meziane

Theses and Dissertations

Much of the debate around women’s rights in legal systems focuses on the increase of protection as a legal mechanism for approaching and guaranteeing gender equality. Yet, what extensive or comprehensive analysis has been done on how effective such laws are when applied? This thesis discusses the extent to which a feminist legal theory, separate and distinct from the patriarchal legal system, can demonstrate how an Islamic or Napoleonic order is conceptually another male rationality. While one could possibly identify inefficiencies of laws proclaiming equality and protection for women, the context of the question is inevitably entrenched in the very …

The Adversity Of Adversarialism: How The Consensus Rule Reproduces The Expert Paradox, Martin Weinel

Villanova Law Review

No abstract provided.

Embracing Deference, Edward K. Cheng, Elodie O. Currier, Payton B. Hampton

Villanova Law Review

No abstract provided.

The "Crisis Of Expertise" Reaches The Courtroom: An Introduction To The Symposium On, And A Response To, Edward Cheng's Consensus Rule, David S. Caudill

Villanova Law Review

No abstract provided.