Law Commons^™

Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler

Faculty Scholarship

This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this Article, …

Law's Legitimacy: Lon Fuller In A Consequentialist Frame, Daniel L. Feldman

Dissertations, Theses, and Capstone Projects

This thesis argues that Lon Fuller’s approach to jurisprudence offers more important support to the rule of law than has been generally recognized. It argues further that a consequentialist lens allows clearer views of Fuller’s strengths in this regard, despite Fuller’s own resistance to consequentialism and despite consequentialism’s blindness to some of Fuller’s depth and texture. This thesis supplies a formula, although one intended only as a guide to thinking, not for actual computation, to drive judicial decision-making. The inputs into this formula are six values widely shared in the United States, modified by case-by-case salience. Kantian deontology strongly influences …

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.

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 …

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.

The Right To Procreate By Nontraditional Methods, Elizabeth Kreager

St. Mary's Law Journal

No abstract provided.

Post V. Trinity Health-Michigan: Does 42 U.S.C. § 1985(3) Offer Protection From Disability Discrimination?, Joseph D. Burdine

Seattle University Law Review Online

No abstract provided.

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

Scholarly Articles

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

Chief Justice Max Baer And The Legitimacy Of Policy Courts, Thomas G. Saylor

Duquesne Law Review

It was with great pleasure that I watched my friend, Chief Justice Max Baer, orchestrate and preside over the Supreme Court of Pennsylvania's 300th Anniversary Symposium conducted at the Constitution Center in Philadelphia in May 2022. And now, going on a year after his untimely passing, it is a source of comfort to know that Max was able to relish this milestone event in the sunset of his life.

To Go Boldly, Betsy Ceraso

Duquesne Law Review

It was an honor and a privilege working for Chief Justice Max Baer, whom I and most others in our chambers referred to as "the Judge." As a jurist, the Judge came to the Supreme Court of Pennsylvania from the family court, and he brought with him an immediate and heartfelt sense of how the judicial system affects the vulnerable, particularly children. The Judge was the ever-dedicated public servant who thought it important not only to serve the people, but to give back by engaging with students and young lawyers to help shape the next generation of litigants and judges. …

The Practical Jurisprudence Of Max Baer, Thomas R. Kline, Andra Laidacker, Charles Becker

Duquesne Law Review

The late Chief Justice Max Baer was a friend. We met through Duquesne Law School. Max graduated in 1975 and I (Tom Kline) graduated three years later. We did not attend law school at the same time, but we became friends through the Duquesne community. We shared the same birthday. We grew up Jewish in small-town Pennsylvania. Following graduation, Max stayed in Pittsburgh and built his career in the Attorney General's Office. I moved to Philadelphia to work for Jim Beasley. We sometimes were on the opposite sides of cases. But every year, we texted or called each other on …

The Judicial Opinions Of Chief Justice Max Baer Of The Supreme Court Of Pennsylvania (2004-2022), Joel Fishman

Duquesne Law Review

Chief Justice David Max Baer (December 24, 1947-October 1, 2022) was born in Pittsburgh, graduated from the University of Pittsburgh, B.A., with honors, 1971, and from Duquesne University School of Law, J.D. with honors, 1975. He was admitted to the Allegheny County Bar and federal courts in 1975. He served as a Deputy Attorney-General (1975-79), practiced law in Sherrard, German and Kelly, PC, (1980-89), and elected a Judge of the Court of Common Pleas of Allegheny County in November 1989 and retained in November 1999, serving then from January 1990 to January 2004. Baer served as a member of the …

Anonymity Preserves Integrity: Expanding The Use Of Anonymous Juries In High-Profile Criminal Cases, Caitlin Mcdonough

Duquesne Law Review

While serving on a jury for a high-profile case, there is always a possibility that a juror develops "juror stress," an emotional or physical reaction to their jury service.1 Stress can accumulate over the course of jury service, with an estimated 70% of all jurors reporting some level of stress from partaking in the duty.² Jury duty asks a lot of a person, especially when a juror is called to serve on a high-profile trial that could continue for weeks or months on end and amass intense media scrutiny. Certain high-profile trials require the court to establish greater protections …

Federal Common Law Stare Decisis And The Doctrine Of Equitable Apportionment, Eric P. Leis

Buffalo Environmental Law Journal

United States Supreme Court Justice Clarence Thomas erred in his concurrence to Gamble v. United States when he derived his “demonstrably erroneous” standard of stare decisis because he overlooked a significant portion of federal law: federal common law. In Gamble, Justice Thomas argued for a weak standard of stare decisis under which the Supreme Court would overrule any “demonstrably erroneous” precedent that is contrary to our written laws, regulations, and Constitution. This standard may be functional when applying positive law, but it simply cannot be maintained when confronted with matters of federal common law. Were Justice Thomas’ “demonstrably erroneous” standard …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Anglo-Saxon Res Judicata Culture For Civil Law Systems, Cesare Cavallini

Northwestern Journal of International Law & Business

One traditional aspect distinguishing the common law system from the civil law one lies in the perceived disparities in the inspiration of the law-making process. The Anglo-Saxon system typically grounds its rules in explicit and discernible policies spanning social, anthropological, and economic realms directly relevant to the circumstances. In contrast, the civil law tradition frequently necessitates a fixed conceptual framework, sometimes detached from the practical needs of society. Or, at least, this dynamic persisted until recent changes prompted by the “doing business” model, which has timidly ascended to the forefront of the State agenda, particularly across Europe, notably in Italy. …

Governing Private Governance, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court's opinion in Dobbs rejected an individual right to reproductive choice, many private firms chose to govern reproductive healthcare by covering employee access to abortions. As mass shootings continue to plague the country, some firms have decided to govern firearm safety by discontinuing sales of assault weapons. While the climate crisis continues to upend life on Earth, corporate leaders are engaging in private environmental governance by voluntarily reducing their own emissions, demanding reductions within their supply chains, and pressuring peers and competitors to do the same. Each of these endeavors represents a form of private governance in …

Democratizing New York’S Eminent Domain Regime, Gregory Wagner

Brooklyn Law Review

Since the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in …

Preambles Before The Preamble: Rediscovering The Preamble’S Role In Constitutional Interpretation, Stuart Ford

Brooklyn Law Review

This article explores how the Preamble to the Constitution (Preamble) would have been viewed when it was drafted by looking at how preambles were used in America in the seventeenth and eighteenth centuries. It offers the first comprehensive look at how preambles were viewed by lawyers, judges, politicians, and the public in the years before the Constitution was ratified. It demonstrates that courts’ modern treatment of the Preamble is at odds with its original meaning. Eighteenth-century Americans viewed the Preamble as an important tool for understanding and interpreting the Constitution. They would have expected courts to interpret the Constitution’s terms …

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 …

Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman

Brooklyn Law Review

The New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city's cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil …

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 …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …