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A Call For A Genuinely American Jurisprudence, John Underwood Lewis 2017 St. John's University School of Law

A Call For A Genuinely American Jurisprudence, John Underwood Lewis

The Catholic Lawyer

No abstract provided.


Interview With Christoph Möllers: On The Possibilities And Afacticity Of Norms, Christoph Moellers 2017 Notre Dame Law School

Interview With Christoph Möllers: On The Possibilities And Afacticity Of Norms, Christoph Moellers

Notre Dame Journal of International & Comparative Law

Christoph Möllers, Professor of Public Law and Jurisprudence at the Humboldt Universität zu Berlin, discussed his recent book, The Possibility of Norms, and related concepts of jurisprudence on June 16, 2016 with Alex Holznienkemper, Ph.D. of Baylor University. The following is an edited transcript of their interview as translated by Dr. Holznienkemper.


The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston 2017 The Catholic University of America, Columbus School of Law

The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston

Catholic University Law Review

The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled ...


The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood 2017 Barry University School of Law

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.


Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young 2017 Boston College Law School

Rights And Queues: On Distributive Contests In The Modern State, Katharine G. Young

Katharine G. Young

Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique ...


Dual Sovereignty In Europe?: A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju 2017 Boston College Law School

Dual Sovereignty In Europe?: A Critique Of Habermas's Defense Of The Nation-State, Vlad F. Perju

Vlad Perju

Jürgen Habermas’s influential account of the transnationalization of democracy is typically seen as a bold attempt to articulate the political-philosophical foundations of European integration. Habermas posits an identity split between individuals as citizens of their nation states and (the same) individuals as members of the future European Union. According to the dual sovereignty thesis, nation states and the EU are co-original and co-determinate.

I challenge this conception on two grounds. First, split identity is a source of fragmentation that subverts the transnationalization of democracy. It would be irrational for EU citizens to partake in a project that empowers states ...


Our Principled Constitution, Mitchell N. Berman 2017 University of Pennsylvania Law School

Our Principled Constitution, Mitchell N. Berman

Faculty Scholarship

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a ...


High-Stakes Interpretation, Ryan D. Doerfler 2017 University of Pennsylvania Law School

High-Stakes Interpretation, Ryan D. Doerfler

Faculty Scholarship

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to ...


Community Control Over Camera Surveillance: A Response To Bennett Capers’S Crime, Surveillance, And Communities, Christopher Slobogin 2017 Vanderbilt University Law School

Community Control Over Camera Surveillance: A Response To Bennett Capers’S Crime, Surveillance, And Communities, Christopher Slobogin

Christopher Slobogin

No abstract provided.


The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule 2017 Trinity College, Oxford

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually ...


The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger 2017 U.S. Supreme Court

The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger

Fordham Law Review

PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.


Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew 2017 Fordham University School of Law

Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew

Fordham Law Review

Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If McDonnell ...


The Gibbons Fallacy, Richard A. Primus 2017 University of Michigan Law School

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that ...


The Mexican Maquiladora: Rumors Of Its Death Are Premature (A Panel Discussion), Michael W. Gordon, Carlos Angulo Parra, Edmundo Elias-Fernandez, John H. Christman, Margaret E. Montoya 2017 University of New Mexico School of Law

The Mexican Maquiladora: Rumors Of Its Death Are Premature (A Panel Discussion), Michael W. Gordon, Carlos Angulo Parra, Edmundo Elias-Fernandez, John H. Christman, Margaret E. Montoya

Margaret Montoya

No abstract provided.


The U.S. Supreme Court And The Alvarez-Machain Cases: Recasting International Law, Sherri Burr 2017 University of New Mexico

The U.S. Supreme Court And The Alvarez-Machain Cases: Recasting International Law, Sherri Burr

Sherri Burr

No abstract provided.


Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon 2017 Barry University School of Law

Self-Driving Cars: Autonomous Technology That Needs A Designated Duty Passenger, Michelle L.D. Hanlon

Barry Law Review

No abstract provided.


Will Quants Rule The (Legal) World?, Edward K. Cheng 2017 Brooklyn Law School

Will Quants Rule The (Legal) World?, Edward K. Cheng

Edward Cheng

The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be sure ...


Importancia De Los Plenos Casatorios En Materia De Derechos Reales, Julio Eduardo Pozo Sánchez 2017 Universidad Nacional Mayor de San Marcos

Importancia De Los Plenos Casatorios En Materia De Derechos Reales, Julio Eduardo Pozo Sánchez

Julio Eduardo Pozo Sánchez

Seis de los nueve Plenos Casatorios celebrados hasta la fecha han abordado, desde alguna arista en particular, temas que le competen a los Derechos Reales.
Veamos de qué tratan.


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. 2017 University of Pennsylvania Law School

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality ...


Contract Exposition And Formalism, Gregory Klass 2017 Georgetown University Law Center

Contract Exposition And Formalism, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Formalism in contract law has had many defenders and many critics. What courts need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by developing a general theory of the rules of contract interpretation and construction—contract “exposition.” The theory distinguishes inter alia two forms of formalism. Formalities effect legal change by virtue of their form alone, and thereby obviate interpretation. Examples from contract law include “as is”, the seal and boilerplate terms. Formalities work when parties intend their legal effects, that is, when they perform juristic acts. Plain meaning ...


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