Law Commons^™

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 Court And The Private Plaintiff, Elizabeth Beske

Scholarly Articles in Law Reviews & Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

Faculty Scholarship

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

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.

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 …

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

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 Consensus Rule: Lessons From The Regulatory World, Wendy Wagner

Villanova Law Review (1956 - )

No abstract provided.

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

Villanova Law Review (1956 - )

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 (1956 - )

No abstract provided.

The Owls: Some Difficulties In Judging Scientific Consensus, Harry Collins

Villanova Law Review (1956 - )

No abstract provided.

The Consensus Rule: Judges, Jurors, And Admissibility Hearings, Robert Evans

Villanova Law Review (1956 - )

No abstract provided.

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

Villanova Law Review (1956 - )

No abstract provided.

From Scanner To Court: A Neuroscientifically Informed “Reasonable Person” Test Of Trademark Infringement, Zhihao Zhang, Maxwell Good, Vera Kulikov, Femke Van Horen, Mark Bartholomew, Andrew S. Kayser, Ming Hsu

Journal Articles

Many legal decisions center on the thoughts or perceptions of some idealized group of individuals, referred to variously as the “average person,” “the typical consumer,” or the “reasonable person.” Substantial concerns exist, however, regarding the subjectivity and vulnerability to biases inherent in conventional means of assessing such responses, particularly the use of self-report evidence. Here, we addressed these concerns by complementing self-report evidence with neural data to inform the mental representations in question. Using an example from intellectual property law, we demonstrate that it is possible to construct a parsimonious neural index of visual similarity that can inform the reasonable …

What A Waste! An Evaluation Of Federal And State Medical And Biohazard Waste Regulations During The Covid-19 Pandemic And Their Impact On Environmental Justice, Samantha Newman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

To Preserve, Release, And Litigate: Dimensions Of Executive Branch Transparency, Tracey E. George, Gbemende E. Johnson

Vanderbilt Law School Faculty Publications

The Trump campaign and presidency were marked by multiple controversies centered on transparencyor the lack thereof. Prior to his election, then‐candidate Donald Trump broke with presidentialcampaign norms by refusing to release his tax returns. Attempts by Democratic‐controlled Housecommittees and Democratic New York state officials to access President Trump's tax records werecontested by Trump at every stage. The resulting court battles lasted throughout his presidency andeventually reached the U.S. Supreme Court.The Trump White House also broke with the Obamaadministration's practice of releasing White House visitor logs, removing from public view the record ofwho visited the White House and when (Kennedy,2017). At …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Consequences And The Supreme Court, Aaron Tang

Northwestern University Law Review

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”

This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. …

The Misunderstood History Of Textualism, Tara Leigh Grove

Northwestern University Law Review

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to …

The Counterdemocratic Difficulty, Aziz Z. Huq

Northwestern University Law Review

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation …

The Consequence Of Final Causality: Competing Views Of Legal Teleology, Jonathan M. Dumdei

Liberty University Journal of Statesmanship & Public Policy

Philosophy of law and legal jurisprudence have received recent attention in the United States due to the significant change in the makeup of the Supreme Court. Historical understanding of the legal philosophies that have influenced the U.S. and the ancient principles upon which they are built must of necessity be properly assessed. This thesis proposes that Aquinas’s conception of Natural Law as the basis for legal teleology provides a superior grounding for American jurisprudence than the theories of legal positivism and critical legal theory due to the superiority of Natural Law’s integration of ultimate final causes. Through a survey of …

Kepastian Hukum Kantor Perwakilan Badan Usaha Jasa Konstruksi Asing Dalam Melakukan Kegiatan Usaha Di Indonesia, Emy Mutia Zahrina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Representative offices are present in Indonesia in order to meet the needs of global economic growth in all countries. Multinational companies expand their business to other countries through relocation policies. The aim is none other than an effort to reduce production costs through a number of comparative advantages possessed by Indonesia as well as seizing such a large market for these products, and through this way multinational companies benefit. The presence of representative offices in Indonesia is regulated by Presidential Decree Number 90 of 2000 concerning Representative Offices of Foreign Companies. Through the Presidential Decree, the government limits the scope …

Cross-Border Transfer Pricing Sebagai Tindakan Tax Avoidance, Elleanor Rigby Bangun

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Transfer Pricing refers to pricing transaction within and between enterprises situated in different countries and belong to the same multinational group. Cross-border transaction inevitably affects international taxation, especially when multinational enterprises encounter two or more countries that apply different tax collection systems. Consequently, a Tax Treaty (Perjanjian Penghindaran Pajak Berganda/P3B) is made to resolve issues involving double taxation. However, since the Tax Treaty’s benefits vary by country, the investors or companies tend to abuse the agreement in order to gain the most profitable benefits or incentives. Abusing the benefits of Tax Treaty (P3B) could be categorized as an act against …

Resentralisasi Kewenagan Pengelolaan Pertambangan Mineral Dan Batura, Muhammad Salman Al Farisi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Amendments to Law No. 4 of 2009 became Law No. 4 of 2009 withdrawing almost all local government authority into central authority. Leaving room for delegation of some of the authority of the Central Government to provincial regional governments for the issuance of IPR and SIPB, even district-city governments no longer have space for authority over coal mineral mining matters. the authority of provincial or district/city regional governments in mining affairs, is a concurrent matter which in its handling involves the central government and regional governments, withdraws most of the authority and does not involve regional governments, of course it …

Analisis Terhadap Penerapan Asas Formil Dan Materiil Pembentukan Rancangan Undang-Undang Tentang Penghapusan Kekerasan Seksual, Siti Sharhana Drajat

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Sexual violence in Indonesia has caused a public’s worry. The bill on the elimination of sexual violence (RUU PKS) is considered very important to be passed. Purpose of this article is to analyze the suitability of the principles in the RUU PKS with Indonesian act of Formulation of Laws and Regulation Number 12 of 2011 (UU P3). The method used in writing this article uses the normative legal research. Results of this study are formal principles in the anti sexual violence bill is appropriate with the UU P3 except the principle of openness. Likewise with the material principles in the …

Analisis Kritis Mengenai Percepatan Waktu Penagihan Utang Dalam Sengketa-Sengketa Kepailitan, Siti Rahmah Sari Ramadhani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Law Number 37 of 2004 (UUK-PKPU) is a refinement of the old bankruptcy regulation of Faillissementsverordening (Fv) and Law Number 4 of 1998 (UUK). Completion is done in order to meet the needs and solve problems that arise in connection with bankruptcy. However, despite the changes and improvements to the regulation, there are still problems that arise, especially in accelerating the timing of debt collection (acceleration). In the UKK and Fv acceleration is not regulated normatively. So the judge has the discretion to make the discovery of the law differently in each case. In UUK-PKPU acceleration found in the explanation …

Tinjauan Hukum Penerapan Hak Mendahulu Utang Pajak Dalam Perkara Kepailitan Pt Industries Badja Garuda Berdasarkan Undang-Undang Nomor 37 Tahun 2004 Tentang Kepailitan Dan Penundaan Kewajiban Pembayaran Utang, Siti Fatimah Citra Nurislamiati

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses the application of pre-emptive rights over tax debt collection in bankruptcy disputes regulated in Article 41 paragraph (3) of Law Number 37 of 2004 concerning the Bankruptcy and Deferral of Debt Payment Obligations displayed by the Directorate General of Taxes. Tax debts outside the bankruptcy process for compulsory taxes are being filed for bankruptcy by requesting the Commercial Court to return all tax liabilities that would harm the interests of the country. In the event that a taxpayer has been declared bankrupt, the Directorate General of Taxes still has the right to overtake and is privileged, requesting …