Law Commons^™

Recent Developments, Clinton T. Summers

Arkansas Law Review

The United States Supreme Court upheld an Arkansas law regulating how pharmacies are reimbursed by pharmacy benefit managers. In Rutledge v. Pharmaceutical Care Management Ass’n, a unanimous Court decided that Arkansas Act 900, passed in 2015, was not pre-empted by the federal Employee Retirement Income Security Act of 1974 (“ERISA”).

Learning From The Past: Using Korematsu And Other Japanese Internment Cases To Provide Protections Against Immigration Detentions, Caleb Ward

Arkansas Law Review

One of the darkest periods in modern United States history is reoccurring with mixed public approval. During World War II, the United States government enacted executive orders creating a curfew, proscribing living areas, and forcing the exclusion and detention of all Japanese descendants from the West Coast. The United States justified these grievous freedom and equality violations through an increased need for national security “because we [were] at war with [Japan].” However, this perceived increased need for national security came from a fraudulent assessment showing any Japanese-American could be planning espionage or sabotage of the United States. After the war, …

Greenbacks, Consent, And Unwritten Amendments, John M. Bickers

Arkansas Law Review

"I remember a German farmer expressing as much in a few words as the whole subject requires: “money is money, and paper is paper.”—All the invention of man cannot make them otherwise. The alchymist may cease his labours, and the hunter after the philosopher’s stone go to rest, if paper cannot be metamorphosed into gold and silver, or made to answer the same purpose in all cases."

Every day Americans spend paper money, using it as legal tender. Yet the Constitution makes no mention of this phenomenon. Indeed, it clearly prevents the states from having the authority to make paper …

Debtors' Incarceration In Islamic Jurisprudence And Jordanian Law, Mohamed Khalaf Bani Salama, Khouloq Daif Allah Agha

UAEU Law Journal

This study deals with debtors' imprisonment from both the perspective of Islamic and Jordanian Law. It discusses the pro and anti scholars' view of incarcerating debtors, the legal nature of debt, debt types, and debts that result in incarceration in Jordanian Law. The research came to the conclusion that debt (no matter its nature) is a form of stimulus that moves life right along preventing stagnation. Debtors in Islamic Law are subjected to optional punitive measures while in Jordanian Law punishment of said debtors is a way of ensuring creditors' demands being met. Both the Islamic and Jordanian Laws allow …

The Meaning Of Al-Mukhalafah According To The Scholars Of Osul And Its Applications In The Jordanina Law, Mohammad Hamad Abdel Hameed

UAEU Law Journal

This work deals with Mafhum Al-Mukhalfah and its importance in the Jordanian Law, and the attitude of Muslim scholars towards it, some of these scholars see it as a document in Islamic Law and others reject it because it does not lead to the correct result.

This study has reached several results; the most important one, Mafhum Al-Mukhalafah, has been applied in the Jordanian Law and has given successful results.

Political Money: Legal And Comparative Study With The Jordanian Legal System, Mohammed Ali Al-Omari

UAEU Law Journal

Praise be to God and our merciful prayers on Mohammad, the messenger of Allah, Peace be upon him to the judgment day.

This research focuses on one kind of money called the “political money”, and this research explains the meaning of this term, and all terms related to it, and how it can be reflected in the community and religion. From the researcher’s view the political money stands for bribe, boodle, and hypocrisy. Firstly, the researcher illustrates the judgment of the dealing and circulating of this type of money. Secondly, he explains how the law perceives political money, and its …

Reconstruction Ways Of Endowment At The Dubai Endowment & Minors Affairs Foundation

UAEU Law Journal

This study aims at providing information on why a large number of endowments are either scattered and misused or invested in a non strategic manner. Furthermore, this study shows the work on the analysis of existing conditions and potential for change for the purpose of activating or improving performance, developing or investing endowment in the right way. This objective is seen to be the main goal of any current endowment foundation and is aimed at better outcomes of endowment resources in the society. This study will also give a jurisprudence point of view on the rule of reconstruction and development …

What Telling Of A Survivor's Story Will Finally Force A Remedy? Notes On A Silencing By Lacy Crawford And Is Rape A Crime? A Memoir, An Investigation, And A Manifesto By Michelle Bowdler, Jody Raphael

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

The Morality Of Fiduciary Law, Paul B. Miller

William & Mary Law Review

Recent work of fiduciary theory has provided conceptual synthesis requisite to understanding core fiduciary principles and the structure of fiduciary liability. However, normative questions have received only sporadic attention. What values animate fiduciary law? How does, or should, fiduciary law prove responsive to them?

While in other areas of private law theory—notably, tort theory— pioneering scholars went directly at normative questions like these, fiduciary theory has been exceptional in the reticence shown toward them. The reticence is sensible. Fiduciary principles are the product of equity’s most extended and convoluted program of supplementing surrounding law. They span several distinct forms of …

Continuous Burdens Of Proof, Emily Spottswood

Nevada Law Journal

The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing proof burdens, unfortunately, have a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case.

This Article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective …

Supreme Court Reform And American Democracy, Ganesh Sitaraman, Daniel Epps

Vanderbilt Law School Faculty Publications

In How to Save the Supreme Court, we identified the legitimacy challenge facing the Court, traced it to a set of structural flaws, and proposed novel reforms. Little more than a year later, the conversation around Supreme Court reform has only grown louder and more urgent. In this Essay, we continue that conversation by engaging with critics of our approach. The current crisis of the Supreme Court is, we argue, inextricable from the question of the Supreme Court’s proper role in our democracy. For those interested in reform, there are three distinct strategies for ensuring the Supreme Court maintains its …

Measuring Semantic Relatedness: A Proposal For A New Textual Tool, Katherine A. Cohen

Vanderbilt Law Review

Judicial decisions, statutes, constitutions, sentencing guidelines, and ERISA-related documents have at least one thing in common: at a molecular level, the laws are all composed of words. The scientific study of linguistics, particularly the field of semantics, analyzes what words mean and how they are connected with each other. And yet, thus far, the legal field has taken little notice of academic and technological breakthroughs in the field of linguistic semantics. This Note seeks to highlight the potential utility of linguistic semantic tools in interpreting legal texts. Specifically, applying algorithms to a free online lexical database allows anyone with a …

Expanding Therapeutic Jurisprudence Across The Federal Judiciary, Benjamin Barsky, Heather Ellis Cucolo, Dominic Sisti

Articles & Chapters

A patchwork of drug courts and other problem-solving courts currently exists to divert individuals with mental illness and substance use disorders away from the criminal justice system. We call for a broader implementation of problem-solving courts, particularly at the federal level, that would operate according to the principles of therapeutic jurisprudence (i.e., a framework that aims to maximize the health benefits of judicial and legislative policies and practices). Expanding federal problem-solving courts will better serve individuals with mental illness and substance use disorders in the federal criminal justice system and allow them to benefit from rehabilitation and diversion programs. This …

Settled Law, G. Alexander Nunn, Alan M. Trammell

Faculty Scholarship

“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful …

Reasoning The Legitimate Discourse And The Impact On Its Interpretation; A Judicial Doctrinal Study, Maher Haswa

UAEU Law Journal

This study deals with the assets of jurisprudence represented in the explanation and interpretation of the legitimate discourse (Alnuss). These are tools to analyze and understand the Qua’an and Suna discourse reaching out to accomplish its meaning.

This study builds and defines the concept of reasoning and the concept of cause after showing the conventions of jurisprudents to the concept of reason. The rationale of this study is Hikmat Almutakalmeen.

This study also shows the concept of Nuss, from its broad perspective, without any restraints; regardless of what it refers to. It also illustrates the difference between explanation and interpretation. …

The Impact Of Lease Financing In The Benefits Of Education In Islamic Jurisprudence., Walid Shawish

UAEU Law Journal

Higher education represents an essential need for society, enabling its comprehensive revival. Furthermore, money forms the foundation upon which people’s worldly lives are based, affirming the meaning of the Quranic verse: “Al Nisaa”:5. In fact, money only becomes worthwhile when it contributes to providing an education to its seekers, especially higher education as it the means of elevating the nation and lead it from darkness to enlightenment.

To achieve the noble goals of financing education and benefit all involved parties - the university, financial institute and the student - appropriate investment modes should exist. The researcher shows that the ijarah …

Engineering The Modern Administrative State: Political Accommodation And Legal Strategy In The New Deal Era, Daniel B. Rodriguez, Barry R. Weingast

BYU Law Review

Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this Article , part one of a larger project, we revisit the critical …

Beating The Accused In Islamic Jurisprudence (Comparative Study), Mai’N Abu Baker Al Saud, Maher Haswa

UAEU Law Journal

This research is an attempt to examine the legality of beating the accused - who is indicated by the evidence of the charge, or known of committing such types of these crimes , - in order to reach the truth , only in case of the misleading information or the judge could not know the truth without this procedure. This research has dealt with the subject of study in three sections , with the first devoted to talk about the definition of the term charge and the charge and the kinds and types of defendants in an attempt to limit …

Florida's Harmful Algal Blooms: Tiny Organisms Needing Massive Legislation, Jillian Barnard

Environmental and Earth Law Journal (EELJ)

No abstract provided.

The Rights Of Nature Movement In The United States: Community Organizing, Local Legislation, Court Challenges, Possible Lessons And Pathways, Marsha Moutrie

Environmental and Earth Law Journal (EELJ)

No abstract provided.

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

Contracting With Self Under The Agency's Investment Product: A Comparative And Applied Study Based On The Kuwaiti Law, Ali Ibrahim Al-Rashed

UAEU Law Journal

The investment product, with the right to contract with one’s self, is considered one of many products that spread amongst the Islamic financial institutions. In the past, this subject was a matter of controversy between scholars. Nevertheless contemporary jurists do not contest the legality of the product. The study addresses this issue with in-depth research and details in terms of legitimacy and with what was observed by the Kuwaiti Law. The study consists of the following sections:

Section I: the rule of contracting with self from the sharia perspective.

Section II: the rule of contracting with self from the legal …

Compensation For Material Damage Resulting From Assault On Life In Islamic Jurisprudence (Fiqh) And The Applicable Emirati Law, Mahmoud Majid Al-Kubaissi

UAEU Law Journal

Original damage, namely the damage pertaining to location of damage (injury), such in terms of assault with a weapon leading to death, or amputation of one of his bodily parts (limbs), or wounding him/her, or incapacitates one of his bodily organs (limbs), or causes its disfiguration.

The material subsidiary damage: the damage consequent upon the original damage, such as: sustaining damage from a serious wound, which incapacitates him/her from work throughout the period of treatment.

When the blood money prescribed by the Legislator is not mandatory, and punishment is not necessitated (Qissas in Arabic Language) it may be observed …

The Substantial Age Difference Between The Betrothed:, Dr. Hamza Abdelkarim Hammad

UAEU Law Journal

This Study aims to analyze the matter of the substantial age difference between the nuptials, in an attempt to accomplish two basic goals; namely: elaborate the position of Islamic Fiqh (jurisprudence) on this issue, and analyze the position of the Emirati and Jordanian personal status Laws toward this matter. The present Study adopted the descriptive analytical method including comparison and criticism, and it found that the jurists held two distinct positions; the first deems it necessary to have age compatibility, where one group among them considers it laudable and the other considers it as a condition; and the second one …

Exchange Of Monetary Debts: A Comparative Jurisprudential Study, Ayman Mustafa Al-Dabbagh

UAEU Law Journal

This research aims to answer many questions: what is meant by Exchange of Monetary Debts? What are the Islam jurists’ views in the matter? What are the foundations of these views? What is the right opinion in it from our view according to Islam jurisprudence basis? The research followed inductive, comparative, and analytic approach represented in gathering Islam jurists’ views in the matter and their foundations with analysis, discussion and criticism. The search was divided into four sections; dealing with the aspects of the matter. The research concluded that: It is permissible to exchange monetary debts. It is necessary, in …

Settlement Of Non-Muslim Minorities' Disputes In The Islamic State, Mansour Al-Haidari

UAEU Law Journal

This paper is introduced with a brief introduction on how different legal systems in the past dealt with religious minorities' disputes. Moreover, it shows how different US states were proposing bills and acts to eliminate any religious-based laws or applications. The paper presents how different Islamic schools deal with religious minorities' disputes in the Islamic State. It shows Islamic legal system's tolerance toward minorities in different aspects such as giving their religious leaders a role in solving their disputes according to their religion, and allowing them more freedom in their personal law issues such as marriage, divorce, wills and estates, …

Prospective Jurisprudence The Concept, The Advantages, & Its Legal Instruments, Najmaldeen Al-Zanki

UAEU Law Journal

This study sheds light on "Fiqh Istishraf- Prospective Jurisprudence" in terms of its concept, advantages and foundational tools. It follows a deductive and analytical method to establish its definition, describe its legal outcomes and determine its tools. The study concludes with some important findings. It shows that the term "Fiqh Istishraf'" aims at the grasping of predictable benefits and the preventing of expectable evils. The proper space for it to apply is the scope of public law which dwells on future issues from a general nature. The main advantages of this method could be seen in: providing legal responses for …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

Legitimacy And Impacts Of Specifications And Standards In Preserving Purposes Of Sharia, Ahmed Yassin Al-Qarala, Rahil Mohammed Gharaibeh

UAEU Law Journal

This study aims to release the concept of specifications and standards, portrays sources of its legitimacy from the Koran and the Sunnah, and reviews the importance as well as the reasons for Muslim jurists’ interest and manifestations of this interest. The study concluded that the utilization of specifications and standards is authorized and that one of the duties of the State must be to nurture and grant attention to this concept given the interests protected by these specifications and standards and their impact on the development of production and the progress of societies.

Key words: specifications and standards, legal standards, …