Law Commons^™

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman

Florida State University Law Review

In 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is anti-trust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. …

Legal Summaries Of Administrative Law Cases, Keyana Young

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

The Validity And Criticisms Of The Current Approach Of Human Rights Bodies Regarding The Positive Procedural Obligations Of States, Faris Kareem Al-Anaibi Dr.

UAEU Law Journal

This paper questions whether the current approach of human rights bodies with regard to the positive procedural obligations is valid according to both, the domestic legal standards of states, and the mandate given to them in the conventions. It raises important criticisms about the capability of human rights bodies to effectively fulfill their newly assumed task of ordering and supervising prosecutions and punishments in criminal matters. It seems clear that the domestic justice systems of states bear the primary responsibility to bring violators of the right to life and other human rights to justice and action by human rights bodies …

Titrisation Et «Sukukisation» En Droit Tunisien, Nizar Hamrouni Dr.

UAEU Law Journal

Banks and financial institutions sometimes have to invest the debts they owe to others because they need money by transferring them to others through many means, the most important of which is securitization, which is the transfer of debts to a mutual debt fund in exchange for tradable securities in the market. However, securitization in this commercial form led to the transfer of debt-related risks to the financial market, which actually caused the global financial crisis of 2008.

Therefore, sukuk represents the Islamic alternative to securitization in terms of its subjection to Islamic controls, the most important of which is …

The Fine For The Crime Of Issuing A Cheque Without A Balance Between The Ordinary And The Relative In The Algerian Legislation, Bassim Chihab Prof.

UAEU Law Journal

The fine stipulated in Article 374 of the Algerian Penal Code took a special place in both the judiciary and legal jurisprudence, as the legislator made it specific to the value of the cheque or the decrease in the balance. The judiciary described it as a mandatory complementary punishment, and this resulted in important consequences, as it is not valid to rule on it alone, reprieve or reduce it. In view of the developments in the punitive policy, the Algerian judiciary, represented by the Supreme Court, considered this fine as an original penalty, and everything related to this description was …

Era Of Confusion: The State Of Patent Eligibility Jurisprudence And The Need For Intervention, Alyssa Boggs

St. Mary's Law Journal

No abstract provided.

The Poor Man's Problem In Bankruptcy, Rylee Stanley

St. Mary's Law Journal

No abstract provided.

Constitutional Rights And Retrenchment: The Elusive Promise Of Equal Citizenship, Deborah L. Brake

University of Cincinnati Law Review

No abstract provided.

Resurrection, Bassim Al Shaker

Northwestern Law Journal des Refusés

No abstract provided.

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

American Legal Realism Today: An Idiosyncratic Restatement, Mark Tushnet

Northwestern Law Journal des Refusés

No abstract provided.

An Introduction To American Legal Realism, Noah Hornberger

Northwestern Law Journal des Refusés

No abstract provided.

Foreword, Caroline Faye Radell, Udhanth Mallasani

Northwestern Law Journal des Refusés

No abstract provided.

Agency Deference After Loper: Expertise As A Casualty Of A War Against The “Administrative State”, Michael M. Epstein

Brooklyn Law Review

Chevron deference has been a foundational principle for administrative law for decades. Chevron provided a two-step analysis for determining whether an agency would be given deference in its decision-making. This deferential test finds its legitimacy on the grounds of agency expertise and accountability. However, when the Supreme Court of the United States granted certiorari in Loper Bright Enterprise v. Raimondo, it positioned itself to potentially overrule or severely limit Chevron. An overruling of Chevron would place judicial deference to administrative agency decisions in peril by allowing courts to substitute their own views over the informed opinions of agency experts. This …

Nationwide Injunctions And The Administrative State, Russell L. Weaver

Brooklyn Law Review

Where an administrative regulation is deemed by a court to be illegal, unconstitutional, or otherwise invalid, courts sometimes issue nationwide injunctions. In other words, instead of holding that the regulation cannot be applied to the individuals before the court, the court prohibits the agency from applying the regulation anywhere in the country, including to others not before the court. This article explores the debate surrounding the appropriateness of nationwide injunctions. While at first glance such injunctions may seem to make sense, they can have serious consequences, including risk of abuse and forum shopping, amplification of erroneous decisions, and the negative …

When Life Takes Your Lemons: Resolving The Legislative Prayer Debate In School Board Settings In Light Of Kennedy V. Bremerton School District, Jordan Halper

Brooklyn Law Review

The COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of …

The Major Questions Doctrine’S Domain, Todd Phillips, Beau J. Baumann

Brooklyn Law Review

In West Virginia v. EPA, the Supreme Court elevated the major questions doctrine to new heights by reframing it as a substantive canon and clear statement rule rooted in the separation of powers. The academic response has missed two unanswered questions that will determine the extent of the doctrine’s domain. First, how will the Court apply the doctrine to a range of different regulatory schemes? The doctrine has so far only been applied to nationwide legislative rules that are both (1) economically or politically significant and (2) transformative. It is unclear whether the doctrine applies to alternative modes of regulation …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Journal of Legislation

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado

St. Mary's Law Journal

No abstract provided.

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Defiance, Lackland H. Bloom Jr

St. Mary's Law Journal

No abstract provided.

Rethinking Legislative Facts, Haley N. Proctor

Notre Dame Law Review

As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how. This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

The Next Thirty Years: Developments In Mandamus Jurisprudence In The Last Thirty Years And Why The General Rule That Mandamus Is Unavailable To Review The Denial Of Summary Judgment Is Inconsistent With Modern Mandamus Jurisprudence Under The In Re Prudential Balancing Test, Timothy Delabar

St. Mary's Law Journal

No abstract provided.

Mass Incarceration, Violent Crimes, And Lengthy Sentences: Using The Race-Class Narrative As A Messaging Framework For Shortening Prison Sentences, Eric Petterson

St. Mary's Law Journal

No abstract provided.

Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni

St. Mary's Law Journal

The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this “whole-of-government approach” may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh …

Existing Challenges And Possible Pathways For Case Success In Climate Litigation With Human Rights Claims, Daniel Ziebarth

St. Mary's Law Journal

No abstract provided.

The Gettysburg Address: Lincoln’S Model Legal Argument, Patrick J. Long

Buffalo Law Review

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”