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Articles 1 - 30 of 206
Full-Text Articles in Law
Interpreting Ethics Rules, Samuel J. Levine
Interpreting Ethics Rules, Samuel J. Levine
Pepperdine Law Review
This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment. Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a …
The Problem Of Extravagant Inferences, Cass Sunstein
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 …
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Pepperdine Law Review
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …
The Ungraceful Grace Period: Defining 35 U.S.C. § 102(B)'S Grace Period Exceptions Post-Helsinn, Adam Burstain
The Ungraceful Grace Period: Defining 35 U.S.C. § 102(B)'S Grace Period Exceptions Post-Helsinn, Adam Burstain
Cybaris®
No abstract provided.
Disfavoring Statutory Parentheses (Except In Certain Circumstanaces), Zachary A. Damir
Disfavoring Statutory Parentheses (Except In Certain Circumstanaces), Zachary A. Damir
Notre Dame Law Review
Parentheses in statutes have been at issue in an increasing number of court cases, even at the Supreme Court. Parentheses have a slightly different story from other punctuation marks and they have been used consistently throughout legal history. The Federal Constitution, early statutes, and a large part of our modern state and federal law separate words from their sentences using parentheses. But if a parenthetical conflicts with the material outside of the parentheses, it is the current practice to discard the interior text as surplus-age, even though the legislature may have had a reason to include that text in a …
Determining What’S Not Obvious: Should A Reasonable Expectation Of Success Invalidate Patent Applications?, Natalie Peters
Determining What’S Not Obvious: Should A Reasonable Expectation Of Success Invalidate Patent Applications?, Natalie Peters
University of Massachusetts Law Review
Patents are necessary to incentivize innovation because they grant owners the right to protect inventions. To be patentable, an invention must be useful, it must be novel, and it must not be obvious. But the judiciary has struggled to apply the latter requirement, non-obviousness, particularly for highly technical innovations subject to FDA regulations. For these innovations, the progression through the regulatory jungle can take ten to twenty years and millions of dollars (2.6 billion for a pharmaceutical drug). The complexities of the regulatory process can also render an innovation unprotected by patent rights because, by the end of the process, …
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
University of Miami Law Review
Appointed to the Supreme Court in 1986 by President Reagan, Justice Antonin Scalia redefined the philosophy of textualism. Although methods like the plain meaning rule had been around for over a century, the textualist philosophy of today was not mainstream. While Scalia’s textualism is thought to be a conservative philosophy, Scalia consistently maintained that it was judicial restraint rather than conservatism at the heart of his method. The key tenant of Scalia’s new textualism was an outright rejection of legislative history, which he often brought up in opinions only to mock and dismiss as irrelevant. Starting with the hypothesis that …
The Role Of Nuclear Forensics For Determining The Origin Of Nuclear Materials Out Of Regulatory Control And Nuclear Security, Lekhnath Ghimire, Edward Waller
The Role Of Nuclear Forensics For Determining The Origin Of Nuclear Materials Out Of Regulatory Control And Nuclear Security, Lekhnath Ghimire, Edward Waller
International Journal of Nuclear Security
The international community recognizes the rise in theft and illicit trafficking of nuclear materials and radioactive sources—for malicious use and nuclear terrorism—as a serious threat. That is why a well-developed nuclear forensics capability is an integral part of a robust nuclear security program and a key element of nuclear security infrastructure. Both pre- and post-detonation nuclear forensics are vital for controlling theft and illicit trafficking of nuclear materials, as well as identifying and tracing their sources. Nuclear forensics analysis and interpretation processes for nuclear security is a systematic process that includes: (1) sample collection and categorization techniques and (2) detailed …
Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg
Touro Law Review
The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …
Interpretation Of Concepts From Secondary Issues Based On The Hanbali School Of Thought And Its Applications, Dr. Khalid Al-Harbi
Interpretation Of Concepts From Secondary Issues Based On The Hanbali School Of Thought And Its Applications, Dr. Khalid Al-Harbi
UAEU Law Journal
This study dealt with the interpretation of concepts from secondary issues based on the Hanbali school of thought and its applications. The researcher examined details related to the truth of science, its pillars, the sciences similar to it, its origin, the conditions for graduation by the jurist and the branche issued based on it, and he mentioned Hanbali terms and methods of graduation with contemporary applications.
The researcher found the appropriate meaning for graduating the branches on the branches, determining the year of the emergence of the graduation science, stating the most famous types, and the methods of referencingg and …
“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom
“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom
St. Mary's Law Journal
Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.
The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …
Comparative Interpretation: Authentic Study
Comparative Interpretation: Authentic Study
UAEU Law Journal
This paper deals with the "Comparative Interpretation "from linguistically and terminological point of view, and to explain its beginnings, stages, origins, rules and fields, that are represented in its divisions, and then to determine its scientific path to recognize the objectives of this kind of interpretation particularly its benefits and goals.
Dr Eid Ahmad Al Husban Assistant Professor, Public Law, Legal Studies Department, College Of Islamic Jurisprudence,Al Al-Bayt University. Mafraq, Jordan Research Abstract Due To The Significance Of This Subject, And Due To Its Marginal Status In The Arabic Systems Compared To Its Central Status In The Western Constitutional Systems, This Study Sheds Light On Its Constitutional Characteristics Including Its Nature And System In Order To Ingrain It In The Arab Constitutional Mind. A Critical Analytical Study In The Interpretation Of Scholars For The Hadith Of Imams From Quraish, Odeh Abdullah
UAEU Law Journal
A critical examination of the interpretation of scholars for Hadith of the Prophet Mohammed –peace be upon him- “Imams from Quraish” (Leaders hi in Quraish), reveals that a change has occurred in the understanding of the Hadith and its implications. In the past, Quraish was powerful among the tribes and Imama (leadership) was appropriate for them because people used to follow them and to be loyal to them. However, this status began to fade and people no longer followed Quraish as before. Consequently, as the status of Quraish has shaken, the concept of the Hadith started to change in the …
The Impact Of Different Readings Of Interpretation, Adnan Abdul Razzaq Al Hamwi Al Oulabi
The Impact Of Different Readings Of Interpretation, Adnan Abdul Razzaq Al Hamwi Al Oulabi
UAEU Law Journal
Differences in recitations of the Holy Quran are one of Islamic legislation’s valuable treasures. These different faces of recitation contain meanings and indications of immense legislative value in the areas of Quranic explanation, language, and regulations.
The differences go beyond ordering the Prophet (Peace be Upon Him) to recite the seven recitations of the Holy Quran accurately to actual understanding and analysis which leads to enlightenment and conclusion drawing on what these differences mean. This also leads to searching for the effects of these recitations.
The Holy Quran remains miraculous in the broadest sense of the word keeping its miracle …
First Step Act Of 2018: How Its Statutory Interpretation Limits Criminal Justice Reform, Adriana E. Morquecho
First Step Act Of 2018: How Its Statutory Interpretation Limits Criminal Justice Reform, Adriana E. Morquecho
American University Journal of Gender, Social Policy & the Law
Introduction
Today, the United States incarcerates more people than any other country in the world. Nearly half a million people are incarcerated in federal and state prisons for drug offenses, up from just 41,000 in 1980. Mass incarceration has disproportionately affected communities of color, with the American Civil Liberties Union noting that one out of every three Black boys and one out of every six Latino boys born today can expect to be imprisoned, compared to one out of every seventeen white boys. Notably, the 1980s marked the beginning of the War on Drugs, which led to a spike in …
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Touro Law Review
No abstract provided.
A Better Interpretation Of The Wrongful Death Act, Dennis M. Doiron
A Better Interpretation Of The Wrongful Death Act, Dennis M. Doiron
Maine Law Review
A viable fetus is not a person under the wrongful death act, declared the Maine Law Court in a controversial decision in 1988. To reach this conclusion, the court employed one traditional and one new rule of statutory interpretation, and one traditional rule of law. The traditional rule of interpretation-that the wrongful death act is to be strictly construed because it is in derogation of the common law-dates from the earliest wrongful death cases heard by the court. The new rule of interpretation-that the death statute must be harmonized with the Maine Uniform Probate Code-derives from the enactment of the …
The Dilemma Of Interstatutory Interpretation, Anuj C. Desai
The Dilemma Of Interstatutory Interpretation, Anuj C. Desai
Washington and Lee Law Review
Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court …
Economic Analysis Of Jewish Law, Keith Sharfman
Economic Analysis Of Jewish Law, Keith Sharfman
Touro Law Review
No abstract provided.
Jesus And The Mosaic Law: Agapic Love As The Foundation And Objective Of Law, Robert F. Cochran ,Jr.
Jesus And The Mosaic Law: Agapic Love As The Foundation And Objective Of Law, Robert F. Cochran ,Jr.
Touro Law Review
No abstract provided.
Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger
Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger
Touro Law Review
No abstract provided.
Keeping Faith With Nomos, Steven L. Winter
Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram
Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram
Journal of the National Association of Administrative Law Judiciary
The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its state. A …
Grounding Originalism, William Baude, Stephen E. Sachs
Grounding Originalism, William Baude, Stephen E. Sachs
Northwestern University Law Review
How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.
Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …
Contract Interpretation Enforcement Costs: An Empirical Study Of Textualism Versus Contextualism Conducted Via The West Key Number System, Joshua M. Silverstein
Contract Interpretation Enforcement Costs: An Empirical Study Of Textualism Versus Contextualism Conducted Via The West Key Number System, Joshua M. Silverstein
Hofstra Law Review
This Article sets forth an empirical study of a central issue in the judicial and academic debate over the optimal method of contract interpretation: Whether "textualism" or "contextualism" best minimizes contract enforcement costs. The study measured enforcement costs in twelve ways. Under each of those measures, there was no statistically significant difference in the level of interpretation litigation between textualist and contextualist regimes. Accordingly, the study finds no support for either the textualist hypothesis that contextualism has higher enforcement costs or the contextualist counter-hypothesis that textualism has higher enforcement costs.
The study herein was conducted via the West Key Number …
Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel
Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel
Catholic University Journal of Law and Technology
Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …
Introduction To Justice Robert D. Rucker's Article, "The Right To Ignore The Law: Constitutional Entitlement Versus Judicial Interpretation", Robert F. Blomquist
Introduction To Justice Robert D. Rucker's Article, "The Right To Ignore The Law: Constitutional Entitlement Versus Judicial Interpretation", Robert F. Blomquist
Valparaiso University Law Review
No abstract provided.
Donor Intent, Disaster Relief, Education, And Policy, Marian Conway Ph.D.
Donor Intent, Disaster Relief, Education, And Policy, Marian Conway Ph.D.
Touro Law Review
No abstract provided.
Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin
Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin
St. John's Law Review
(Excerpt)
This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …
The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet
The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet
Pepperdine Law Review
A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …