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Constitutional Change And Wade's Ultimate Political Fact, Richard Kay 2016 Selected Works

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

This is a retrospective review of H.W.R. Wades classic article on parliamentary sovereignty in the United Kingdom, The Basis of Legal Sovereignty, published in 1955. I discuss the legal background against which the essay was written and particularly the South African case of Harris v. Minister of the Interior that was the centerpiece of Wade’s analysis. I survey Wade’s differences with Ivor Jennings, the leading figure among the then active academic defenders of Parliament’s power to impose “manner and form” limitations on future parliaments. I also compare Wade’s identification of an “ultimate political fact ...


The Harm Principle And Free Speech, Rebecca L. Brown 2016 USC Gould School of Law

The Harm Principle And Free Speech, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This article challenges the recent turn to absolutism in free speech doctrine, and the scheme of "protected" and "unprotected" speech that it enshrines. A more historically and theoretically sound approach to free speech would take into account the actual manner in which expression is alleged to cause harm. If the process of causing harm does not engage the rational processes of the audience, then the strict rule against content regulation is not appropriate. The article offers an original, revisionist perspective on the leading case on content regulation, Police Department v. Mosley, 408 U.S. 92 (1972), which was authored by ...


The Tragedy Of Justice Scalia, Mitchell N. Berman 2016 University of Pennsylvania Law School

The Tragedy Of Justice Scalia, Mitchell N. Berman

Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia ...


New Judicial Review In Old Europe, Alyssa S. King 2016 Yale University

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.


The Grace Of God In The Law Of Moses: A Second Look At Israel’S Written Code, Jeffrey S. Krause 2016 Liberty University

The Grace Of God In The Law Of Moses: A Second Look At Israel’S Written Code, Jeffrey S. Krause

Fidei et Veritatis: The Liberty University Journal of Graduate Research

For centuries, the Mosaic Code (“MC”) has been viewed as Israel’s prescriptive legislation, whereby Jewish leaders were to judge infractions by the “letter of the law.” This view is one which permeates both pulpit and pew alike, even in this modern era. However, recent developments in scholarship are challenging this understanding of MC, concluding instead that this “law code” was not utilized in Israelite jurisprudence, but rather as a covenant contract that worked not prescriptively in the lives of the Jews, but rather descriptively, in that it relayed the heart of YHWH to its reader. Accordingly, MC was to ...


Ruling The Skies Or Drowning In Rules? A Look At The Faa’S Sluggish Progress In Developing Rules And Forces That Might Be Shaping The Future Of Drone Use In The United States, Thomas D. Lovett 2016 Barry University School of Law

Ruling The Skies Or Drowning In Rules? A Look At The Faa’S Sluggish Progress In Developing Rules And Forces That Might Be Shaping The Future Of Drone Use In The United States, Thomas D. Lovett

Barry Law Review

No abstract provided.


The Right To Refuse: The Legal Counterbalance For Religious Businesses And Same-Sex Marriage Promotion To Curtail The Rippling Wave Of Tension Eruption Across The Nation And Florida, Ta’lor McFarland 2016 Barry University School of Law

The Right To Refuse: The Legal Counterbalance For Religious Businesses And Same-Sex Marriage Promotion To Curtail The Rippling Wave Of Tension Eruption Across The Nation And Florida, Ta’Lor Mcfarland

Barry Law Review

No abstract provided.


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas 2016 University of Pennsylvania Law School

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski 2016 Barry University School of Law

From Dust We Are And To Dust We Will Return: Eu's Utopia, Greece's Bankruptcy, Carolina Kripinski

Barry Law Review

No abstract provided.


Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh 2016 Barry University School of Law

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.


The Truth (Of The Matter Asserted) Is Out There: Law And The Paranormal Outside The First Amendment, Christopher L. Henry 2016 Barry University School of Law

The Truth (Of The Matter Asserted) Is Out There: Law And The Paranormal Outside The First Amendment, Christopher L. Henry

Barry Law Review

No abstract provided.


Modern Debtors' Prison In The State Of Florida: How The State's Brand Of Cash Register Justice Leads To Imprisonment For Debt, David Angley 2016 Barry University School of Law

Modern Debtors' Prison In The State Of Florida: How The State's Brand Of Cash Register Justice Leads To Imprisonment For Debt, David Angley

Barry Law Review

No abstract provided.


Workers' Compensation Law & The Remedial Waiver, Mary Kati Haupt 2016 Barry University School of Law

Workers' Compensation Law & The Remedial Waiver, Mary Kati Haupt

Barry Law Review

No abstract provided.


The Pre-Appointment Experience Of Supreme Court Justices, Timothy P. O’Neill 2016 Selected Works

The Pre-Appointment Experience Of Supreme Court Justices, Timothy P. O’Neill

Timothy P. O'Neill

Benjamin H. Barton’s recent article, An Empirical Study of Supreme Court Justice Pre-Appointment Experience, makes a significant contribution to the growing body of work that compares and contrasts the professional and educational backgrounds of the current members of the Roberts Court with their predecessors. I share Professor Barton’s concerns.


Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger 2016 Santa Barbara College of Law

Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger

Robert M. Sanger

Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if  California’s system was in need of the same reforms.  The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead ...


Memory And Punishment, O. Carter Snead 2016 Notre Dame Law School

Memory And Punishment, O. Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, and ...


Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead 2016 Notre Dame Law School

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square.

This Article examines the question of how scientific methods and principles can ...


Stare Decisis As Judicial Doctrine, Randy J. Kozel 2016 Notre Dame Law School

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Randy J Kozel

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely ...


The Scope Of Precedent, Randy J. Kozel 2016 Notre Dame Law School

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not ...


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch 2016 University of Pennsylvania Law School

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Jill Fisch

No abstract provided.


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