Law Commons^™

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?

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.

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 …

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.

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.

Colorblind And Color Mute: Words Unspoken In U.S. Supreme Court Oral Arguments, Chris Chambers Goodman

Washington and Lee Journal of Civil Rights and Social Justice

The U.S. Supreme Court holds oral arguments on 70 to 80 cases each year, with fewer than a dozen most years involving issues around race or ethnicity. When the salience of race is clear, Supreme Court observers would expect to hear racial terms used in the arguments by counsel, as well as in the Justice’s questions.

Surprisingly, this research study demonstrates that is not the case. These racial terms - such as color, discriminate, minority, race, and its various related terms like racial, racially, racist, as well as combinations like race-neutral, and race-blind - only sparsely appear in oral argument …

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.”

Are They All Textualists Now?, Austin Peters

Northwestern University Law Review

Recent developments at the U.S. Supreme Court have rekindled debates over textualism. Missing from the conversation is a discussion of the courts that decide the vast majority of statutory interpretation cases in the United States—state courts. This Article uses supervised machine learning to conduct the first-ever empirical study of the statutory interpretation methods used by state supreme courts. In total, this study analyzes over 44,000 opinions from all fifty states from 1980 to 2019.

This Article establishes several key descriptive findings. First, since the 1980s, textualism has risen rapidly in state supreme court opinions. Second, this rise is primarily attributable …

S.B. H(8): Battle Of The Bills And Private Enforcement, Hailey Martin

University of Cincinnati Law Review

No abstract provided.

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam

Brooklyn Law Review

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …

Accountability Courts In Georgia: Judges In The State Of Georgia Explain How They Have Been Empowered By Visionary Political And Judicial Leaders To Tackle Crime, Prison Population, Mental Illness, And Drug Dependency Through Service In Accountability Courts, W. James Sizemore Jr.

Mercer Law Review

Georgia leads the way nationally when it comes to promoting and funding the expansion of accountability courts (commonly called drug courts or mental health courts). The fact that the effort to expand such courts in Georgia was spearheaded by Republican Governor Nathan Deal is surprising to some. This article provides a peek behind the curtain at the massive judicial and political effort to make accountability courts an essential part of criminal justice reform in the State of Georgia.

The article begins with a brief look at the history of accountability courts in Georgia, specifically focusing on several Superior Court Judges …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal

No abstract provided.

Recent Developments In The Jurisprudence Concerning The Delimitation Of The Continental Shelf Beyond 200 Nautical Miles: Analysis Of The Mauritius/Maldives And Nicaragua V. Colombia Cases, Yoshifumi Tanaka

International Law Studies

This article examines recent developments in the jurisprudence related to the delimitation of the continental shelf beyond 200 nautical miles by analyzing the Mauritius/Maldives and Nicaragua v. Colombia cases. The ITLOS Special Chamber in Mauritius/Maldives did not delimit the continental shelf beyond 200 nautical miles due to applying the standard of “significant uncertainty.” In this regard, the scope of and criterion for the standard of “significant uncertainty” merit discussion. The ICJ, in Nicaragua v. Colombia, identified a rule of customary international law that the continental shelf of a State beyond 200 nautical miles may not extend within 200 nautical miles …

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Restricting The Meanings According To The Hanafi Fundamentalists: Principles And Results, Abdeljalil Zuheir Damrah Prof.

UAEU Law Journal

This research aims to review the phenomenon of restricting interpretations among Hanafi fundamentalists, through an investigation of the historical stages and its most prominent symbols, in light of the clarification of the criteria that limit the sections of meanings, and the foundations on which the restriction was based.

To achieve this goal, the study followed the inductive approach that confines the history of Hanafi fundamentalist research on the subject of verbal meanings, while relying on the deductive analytical approach. It is based on tracing the fundamentalist tendencies that appeared among the late Hanafi scholars to clarify the nature of these …

Strengthening The Home Front To Combat The Corona Pandemic: Al-Juwayni As A Model, Abeer Jassim Al Shehab Dr.

UAEU Law Journal

derived from the book "Al-Ghayathi", and this topic is "fortifying the home front".

The research aims to extrapolate the jurisprudence of Imam al-Juwayni in fortifying the home front through his book, and the consolidation of the term fortification of the home front of the state by studying its concept and legitimacy from the legal evidence, and its comprehensive aspects in Juwayni’s jurisprudence with regard to the Corona pandemic; Such as economic and health security, compared to the decisions of the State of Kuwait in the face of the Corona pandemic and its contemporary applications, coupled with a statement of the …

Disseminating False Medical Information On Websites: Its Ruling And Its Impacts From A Jurisprudential Perspective, Asma Salmeen Al-Aryani Dr.

UAEU Law Journal

jurisprudential rulings and effects of dissemination of wrong medical information on websites. The study follows the inductive and descriptive approach. Some of the most important findings of the study are as follows: Adapting the medical advice revolves around being a lease or royalty agreement, and adapting the unpaid dissemination of medical information is an act of righteousness. The doctor who publishes false information ignorantly is a guarantor. If a doctor who strives to publish information on a website, after verifying it, finds out later on that it is false information, he will be rewarded by Almighty Allah, but he has …

The Influence Of Unidroit Principles On The Evolving Interpretation Of The Contract, Mohammed Sulaiman Al-Ahmad Prof., Dr. Abdullah Fadhel Hamid Dr

UAEU Law Journal

principles, are not mere agreements in which some clauses were inserted by the will of the parties, but rather are real common economic projects between the parties, these contracts are intended to achieve the common contractual interest of the parties by ensuring that their effects remain effective. Because these contracts are in a situation of constant interaction with reality, this requires preserving them from the risk of rescission and invalidity as much as possible, and by various legal means. Perhaps the most important and qualified way to preserve the international commercial contract (the common economic project) is to resort to …

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

Translating A Cbdc Dollar Into A Constitutional Dollar, Christopher P. Guzelian

St. Mary's Law Journal

The constitutional Dollar was a silver coin. Federal and state paper moneys were

unconstitutional, and gold and copper coins were not Dollars. Consequently, notable

constitutional originalists claim any Dollar not constructed from silver—including the

current widely circulating paper Federal Reserve note—is unconstitutional. But the Dollar

soon may undergo an unprecedented technological metamorphosis: in 2022, the White

House and the Federal Reserve Bank Board of Governors advocated the possible adoption

of a U.S. Central Bank Digital Currency (“CBDC” Dollars). Private commercial

electronic bank credits have been issued for some time, but a CBDC Dollar would be

America’s first electronic government currency. …

Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud

St. Mary's Law Journal

No abstract provided.

Fording The Stream Of Commerce: What Relatedness Tells Us About Stream Of Commerce Cases, Eric Porterfield

St. Mary's Law Journal

The limit personal jurisdiction has on a court’s authority has long relied on a three-element test: (1) the defendant must have certain minimum contacts with the forum state, (2) the lawsuit must arise out of or be connected to the defendant’s contacts with the forum state, and (3) the exercise of jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court of the United States has spoken often about element one—”“minimum contacts.” Many cases detail the nature and quality of a defendant’s conduct that can create the requisite contacts with the forum state to justify …

The Right To Procreate By Nontraditional Methods, Elizabeth Kreager

St. Mary's Law Journal

No abstract provided.

Narrowing The Police Accountability Gap In Civil Rights Prosecutions, Daniel W. Xu

Emory Law Journal

The absence of police accountability has never been more visible. High-profile police brutality has resulted in high-profile disappointment, where culpable officers walk away undisciplined, unprosecuted, and undeterred from committing the same atrocity again. Such impunity has exposed longstanding deficiencies within the United States’ two-tiered and multipolar system of civil rights enforcement. Chief among these failures is 18 U.S.C. § 242, an oft-overlooked statute that imposes criminal liability upon officers who “willfully” deprive others of any federal constitutional right. The statute’s threshold requirement of willful intent has confused courts and discouraged enforcement, resulting in the heavy underdeterrence of civil rights violations. …

A Major Question For The Sec: Analyzing Constitutional Limits On Regulatory Authority, Matthew Diller, Meredith Berger, Samuel W. Buell, John M. Golden, Suzanne Ashley, Coy Garrison, Aaron Saiger, Suman Naishadham, Mary Jo White

Fordham Journal of Corporate & Financial Law

No abstract provided.

Minutes Are Worth The Minutes: Good Documentation Practices Improve Board Deliberations And Reduce Regulatory And Litigation Risk, Given As The 21st Annual Destefano Lecture, Leo E. Strine Jr.

Fordham Journal of Corporate & Financial Law

This Essay, originally the basis for the 21st Annual Albert A. DeStefano Lecture on Corporate, Securities & Financial Law given on February 27, 2024, at Fordham University School of Law, addresses the importance of good corporate minuting and board documentation practices. Using lessons from Delaware cases where the quality of these practices has determined the outcome of motions and cases, this Essay identifies effective and efficient practices to better address this decidedly not sexy, but unquestionably essential, corporate governance task. The recent Delaware cases underscore the importance of quality and timely documentation of board decision-making, the material benefits of doing …

"Bricolage" As Comparative Research Method For Critical Legislative Innovation, Marie-Claire Belleau

FIU Law Review

Comparative law incentivize imagination to create new solutions to social problems intrinsically linked to different parts of the world. It consists in the analysis of multiple legal solutions revealed by research. Meanwhile, the understanding of the documentation put forward is influenced by the social, cultural, linguistic, political, and economic context where it evolved in the first place. Consequently, the interpretation of those elements leads to varying results. In response to this reality, we offer a modest comparative methodology rooted in creativity inspired by the concept of “bricolage” for the purpose of legislative innovations. In light of some descriptive examples pertaining …

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …

Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams

Brooklyn Law Review

In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …

Balancing Chevron, Skidmore, And Major Questions: A Novel Framework For Judicial Deference To Agency Legal Interpretations, Charles A. Bower

Brooklyn Law Review

The Supreme Court’s decision in West Virginia v. EPA is a watershed moment for administrative law. For the first time, the Court explicitly invoked the Major Questions Doctrine by name in a majority opinion. The usage of the Major Questions Doctrine is important on its own, but equally important is the fact that the longstanding Chevron doctrine played no part in the majority’s analysis. The absence of Chevron doctrine in West Virginia in favor of the Major Questions Doctrine continues a trend where the Court has been relying on Chevron less often. The threats the Chevron faces do not appear …