Law Commons^™

Wisconsin's Citation Rule: Unpublished Should Not Mean Uncitable, Jacob Lloyd

Marquette Law Review

Wisconsin’s citation rule stands tall, yet unsupported. It injures Wisconsin practitioners, their clients, and judges in all three levels of Wisconsin’s judicial branch. With little tolerance, Wisconsin Statutes section 809.23(3) precludes the citation of (1) unpublished opinions issued before July 1, 2009, and (2) unauthored, unpublished opinions thereafter. You may be surprised to learn that that means approximately half of Wisconsin Court of Appeals opinions issued each year are uncitable—so, too, are significantly more than half of the opinions it issued before July 1, 2009. Without change, the Wisconsin Court of Appeals will continue to miscategorize its opinions; Wisconsin’s case …

Barrock Lecture: Democracy In The Criminal Justice System: An Assessment, Carissa Byrne Hessick

Marquette Law Review

None.

Defining And Balancing Equity, Erica Goldberg

Nevada Law Journal

Equity has become a significant goal of every major institution in the United States. Yet equity is often vaguely defined and comprises multifaceted goals. The concept of equity, as a foil to treating everyone identically under formal equality, can both foster and undermine an institution’s primary mission or other values. This paper will reckon with how institutions, especially legal academia, can balance equity against other institutional values. The proper balancing of equity with other institutional values is impeded by the difficulties of defining equity and the chilling effects institutional actors face in discussing these issues.

This Article will first trace …

Narrowing The Scope Of Public Order Payment Under Uae Private International Law: A Critical Study, Mariam Ahmed Alsandal Dr.

UAEU Law Journal

Private international relations are the legal relations of a foreign component, for which the legislator has permitted the application of foreign law to their disputes, which is approved by the Emirati legislator in the Federal Civil Transactions Law No. 5 of 1985 and its amendments, through a set of legal rules known as the rules of attribution contained in texts 10 to 28 of this law. The Emirati legislator also approved the application of the foreign law in the Federal Personal Status Law No. 28 of 2005 and its amendments, stipulating that the litigants or one of them must adhere …

The Impact Of Assigning Legislative Jurisdiction To The Competent Court In Disputes Concerning Inheritance And Estate Related Lawsuits, Bashayer Alghanim Dr.

UAEU Law Journal

disputes and estate related lawsuits having a foreign element. In this respect, the jurisdiction This research determines the court jurisdiction concerning inheritance disputes and estate related lawsuits having a foreign element. In this respect, the jurisdiction connecting factors adopted by the legislator are diverse like personal, regional or qualitative. However, we have dealt in detail with the qualitative jurisdiction connecting factor. As this is the first step, beyond doubt, that affects the determination of choice of law, does choice of law affect jurisdiction under estate related inheritance cases having a foreign element? Accordingly, we have studied the influence contained in …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

Vested Patents And Equal Justice, Adam Macleod

Catholic University Law Review

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law’s interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure justice …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Solemn Vow: Solum's Originalism, Treaties, And Tribal Sovereignty In Castro-Huerta, Liam T. Sheridan

Maine Law Review

In Oklahoma v. Castro-Huerta, the Supreme Court held that states have inherent authority to prosecute crimes committed by non-Indians in “Indian country.” Only two years earlier, the Court in McGirt v. Oklahoma held that most of eastern Oklahoma was Indian country, and thus immune from any state criminal jurisdiction. Castro-Huerta limited this immunity and narrowed the Court’s view of tribal sovereignty as a whole. The majority represented the Court’s originalist faction—minus Justice Gorsuch, who had penned both the majority opinion in McGirt and the dissent in Castro-Huerta. The majority and dissent disagreed over whether federal statutes preempted Oklahoma’s criminal jurisdiction. …

The Dark Matter Of Federal Indian Law: The Duty Of Protection, Matthew L.M. Fletcher

Maine Law Review

The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, an international customary law doctrine in which a larger, stronger sovereign, America in this case, agrees to “protect” the small, weaker sovereign, in this case, tribal nations. America agreed to this in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection. What tribal …

A Comparative Law Guide To A Post-Dobbs America, James Hart, Flore Foulon

Cardozo Journal of Equal Rights & Social Justice

The article argues that the U.S. Supreme Court's Dobbs v. Jackson Women’s Health Organization decision, which overturned *Roe v. Wade* and Planned Parenthood v. Casey, necessitates a federal legislative solution to restore abortion rights. Drawing on France's civil law system, the article proposes a clear, comprehensive federal law that guarantees absolute abortion rights pre-viability and includes safeguards post-viability. It emphasizes the need for consistency and clarity, similar to France's approach, to address the legal void left by *Dobbs* and ensure uniform protections across all U.S. states.

A Court Of Chaos And Whimsy: On The Self-Destructive Nature Of Legal Positivism, Joshua J. Schroeder

Cardozo Journal of Equal Rights & Social Justice

Each of the four arguably most famous dictators in modern Western history, Adolf Hitler, Porfirio Diaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions ofhuman rights. They furthermore rejected the judiciary's equitable power to enforce human rights independently ofpolitics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden's religious rejection of equity as a "roguish thing."

As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, …

Caesar’S Gambit: Coherence, Justification Of Legal Rules, And The Duty Test: Towards An Interactional Theory Of Government Liability For Negligence In Disaster Management, Irehobhude O. Iyioha

Dalhousie Law Journal

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, …

Beneficial Interests Under The Chattels Real Act, Gregory French

Dalhousie Law Journal

This paper examines the Chattels Real Act of Newfoundland and Labrador and the strict treatment of property interests thereunder. Historical treatment of property interests under the Act had been pragmatic and flexible, however later jurisprudence took a stricter interpretation and restricted the interpretation of beneficial interest under the Act. The author suggests that a review of first principles and jurisprudence supports a broader interpretation of property interests under the Act, which should be followed for the better administration of justice and practical expectations of the people of Newfoundland and Labrador.

Cet article examine la Chattels Real Act de Terre-Neuve-et-Labrador et …

A Handmaid’S Tale: Amy Coney Barrett, Originalism, And The Specter Of Religion, Calvin R. Coker, Joel L. Reed

Faculty and Staff Scholarship

In this essay, we analyze the Supreme Court confirmation hearings of Amy Coney Barrett to identify and explain the interaction between religion and jurisprudential philosophy. By tracing rhetorical scholarship on religion, politics, and the Supreme Court, we highlight tension engendered by both the members of the Senate Judiciary Committee and Barrett herself in locating her Catholicism as a desirable attribute for a nominee while at the same time espousing the importance of judicial objectivity. We suggest Barrett and her supporters on the committee invoked the judicial philosophy of originalism to allay this tension while occluding conversations about Barrett’s prior ideological …

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

An Outlook For Employing The "Initial Coin Offering" (Ico) For The Issuance Of "Islamic Smart Sukuk" Across The Blockchain, Dr. Mohiuddin Adnan Al-Hajjar

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The Blockchain introduced new concepts related to the field of finance especially by giving birth to cryptocurrencies. This technical tool is for some a revolution in the business world, while other conservatives are careful about this new technology. Among its various applications, ICO represent an attractive solution for companies seeking capital.

The Islamic orientation of ICO can be an alternative for Islamic financing of projects and businesses to the general public, i.e. companies or individuals. Our analytical and comparative approach is to prove that:

- The issue via an ICO results in the appearance of a Token representing the co-ownership …

Preemption In Shares, Hussein Muheisen Al-Rashidi Dr.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The Court of Appeals was presented with a dispute concerning the recovery of shares sold. The shareholder of a simplified joint-stock company had invoked the right of preemption, which is established by the Civil Code. The Court decided (on 1/10/2017, Appeals Nos. 1704, 1783/2017, Commercial, Civil, Governmental, Unpublished) that the shareholder could return the sold shares in accordance with his right of preemption. It considered that Company Law did not regulate the restitution of shares in the joint-stock company and that it was, therefore, necessary to refer to the provisions of the Civil Code.

We think the decision of the …

The New Dread, Part Ii: The Judicial Overthrow Of The Reasonableness Standard In Police Shooting, Kindaka J. Sanders

Cleveland State Law Review

This Article series argues that the Supreme Court’s jurisprudence on excessive force from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law and order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of conservatism. Modern conservatism developed as a backlash against various social movements like the Civil Rights Movement and spontaneous urban rebellions during …

The Ruling Of Cosmetic Injections: A Jurisprudential Study, Ali Suleiman Al Saleh Dr.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

Cosmetic injections are a medical procedure, completely different from surgery, where a long-term change occurs in the body. The materials used in this procedure varies by source, whether a human, animal or mineral, which would require to study the ruling of utilizing them in cosmetic or medication.

The research concluded that the ruling of using cosmetic injections varies by functions in terms of filling in facial wrinkles and organs, causing paralysis in muscles, or feeding and motivating the skin. It also varies according to the materials injected into the body in terms of generating them from human, animal or otherwise. …

Criteria For Considering The Shari’A Need When Applied To A Commercial Insurance Contract: An Applied Jurisprudential Study, Ahmed Al-Shafei Mr

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

control and measure it. By proposing a list of criteria used in assessing their existence, consideration or elimination, and to test the criteria, the researcher applied them to a commercial insurance.

In order to achieve the goal of the research; the researcher used the inductive analytical method, by following the rules suggested by the Fuqaha’, which required an analysis of some Fuqaha’ sayings, to build standards.

The research concluded that the «Need» that some Fuqaha’ considered in the permissibility of commercial insurance does not meet these criteria in a way that supports their opinion. Accordingly; Commercial insurance in its current …

University Grievance Procedure Pertaining To Exam Results: Its Concept, Legitimacy, And Procedural Mechanism Under Islamic Jurisprudence, Asma Salmeen Al-Aryani

مجلة جامعة الإمارات للبحوث القانونية 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 …

More Than Lip Service Is Required: Excessive Fines Clause Limitations Upon Fining The Homeless, Tim Donaldson

St. Mary's Law Journal

No abstract provided.

The Divine Right Of Judges: How Christian Thought Shaped The American Judiciary, Elise Mclaren Villers

St. Mary's Law Journal

This Essay continues a discussion on the authority of courts, executives, and legislators to govern nations where the law diverges from necessity or morality. In a previous Comment, P. Elise McLaren, Answering the Call: A History of the Emergency Power Doctrine in Texas and United States, 53 St. Mary’s L.J. 287 (2022), I asked whether necessity or emergency ever supersedes the law, i.e., whether “emergency powers” exist. In this Essay, I ask whether the government is held accountable to a force other than the people themselves, namely, religious influence. As was done with respect to emergency powers, I ask …

Preference-Based Federalism, Marquan Robertson

St. Mary's Law Journal

No abstract provided.

A House Built On Sand: The Qualified Immunity Case For Keeping The Smith Doctrine, Joshua L. Johnston

St. Mary's Law Journal

No abstract provided.

A Perpetual Cycle Of “Give-And-Take”: The Case For Texas Eminent Domain Reform, Kathryn Faulk

St. Mary's Law Journal

No abstract provided.

Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo

St. Mary's Law Journal

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …