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2021

Jurisprudence

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Full-Text Articles in Law

Gephi Network Files, Folder 2, Part 2: Co-Citation Network Files, Joseph S. Miller Dec 2021

Gephi Network Files, Folder 2, Part 2: Co-Citation Network Files, Joseph S. Miller

Faculty Datasets

This data subset created and collected by Joseph Miller and digitally preserved here is in support of his forthcoming article "A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach to Assessing Judicial Ideology". From the article's abstract:

"This Article is the first to apply a novel empirical method—citation network analysis—to particular appellate jurists’ separate judicial opinions (e.g., concurrences, dissents) in an effort to provide a more detailed picture of a judge’s ideological preferences. It focuses on the separate opinions of Justices Scalia and Thomas through the end of October Term 2019: they served for a similar number …


Finding Neverland? Artificial Intelligence And The Jurisprudence Of Legal Certainty, Omar Zaky Dec 2021

Finding Neverland? Artificial Intelligence And The Jurisprudence Of Legal Certainty, Omar Zaky

Theses and Dissertations

The development of artificial intelligence (AI) models that are capable of predicting the decisions of prominent courts – most notably the European Court of Human Rights and United States Supreme Court – provides us with an opportunity to revisit important jurisprudential debates regarding the quest for legal certainty. Through providing clear distinctions within formalistic jurisprudence, and its, subsequent, realist critique; this thesis seeks to analyze legal decision-making and its relationship with artificial intelligence. I argue that, AI’s deterministic nature and its support for the law being an “entirely self-contained process” does lend some credence to certain jurisprudential arguments. However, this …


Gephi Network Files, Folder 2, Part 1: Citation Network Files, Joseph S. Miller Dec 2021

Gephi Network Files, Folder 2, Part 1: Citation Network Files, Joseph S. Miller

Faculty Datasets

This data subset created and collected by Joseph Miller and digitally preserved here is in support of his forthcoming article "A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach to Assessing Judicial Ideology". From the article's abstract:

"This Article is the first to apply a novel empirical method—citation network analysis—to particular appellate jurists’ separate judicial opinions (e.g., concurrences, dissents) in an effort to provide a more detailed picture of a judge’s ideological preferences. It focuses on the separate opinions of Justices Scalia and Thomas through the end of October Term 2019: they served for a similar number …


The “Nature” Of Seaman Status After Sanchez, Thomas C. Galligan Jr. Dec 2021

The “Nature” Of Seaman Status After Sanchez, Thomas C. Galligan Jr.

Louisiana Law Review

The article discusses a U.S. Supreme Court case involving welder Gilbert Sanchez who filed a complaint against his employer, Smart Fabricators of Texas LLC, after he sustained an injury at work, including information on pre-en banc proceedings and the application of seaman status jurisprudence.


The Temptation Of Cosmic Private Law Theory, Nathan B. Oman Dec 2021

The Temptation Of Cosmic Private Law Theory, Nathan B. Oman

Faculty Publications

It’s a heady time to be a theorist of private law. After decades of vague post-Realist functionalism or reductive economic theories, the latest generation of private law theorists have provided a proliferation of new philosophies of tort, contract, and property. The result has been a tremendous burst of intellectual creativity. While Kant and Hegel have been dragooned into debates over torts and contracts and even such supposedly wooly headed thinkers as Coke and Blackstone have been rehabilitated, there have been fewer efforts to generate natural law accounts of private law than one might expect, particularly in light of the revival …


Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan Oct 2021

Comparative Limitations On Abortions: The United States Supreme Court V. The European Court Of Human Rights, Sunaya Padmanabhan

Northwestern Journal of Law & Social Policy

This Note compares the balancing tests implemented by the United States Supreme Court and the European Court of Human Rights to determine the legal status of abortion within their jurisdictions. This Note will argue that the Supreme Court’s balancing test better protects a woman’s legal path to an abortion because it A) limits states’ restrictions to specific categories and B) regulates the extent to which states can restrict a woman’s pre-viability abortion.

This Note will also examine the ways in which each court’s abortion jurisprudence substantively restricts a woman’s ability to obtain an abortion, even where legal avenues to the …


City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas Oct 2021

City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas

Northwestern Journal of Law & Social Policy

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger …


Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas Oct 2021

Undue Deference To States In The 2020 Election Litigation, Joshua A. Douglas

William & Mary Bill of Rights Journal

COVID-19 has wreaked havoc on so much of our lives, including how to run our elections. Yet the federal courts have refused to respond appropriately to the dilemma that many voters faced when trying to participate in the 2020 election. Instead, the courts—particularly the U.S. Supreme Court and the federal appellate courts—invoked a narrow test that unduly defers to state election administration and fails to protect adequately the fundamental right to vote.

In constitutional litigation, a law usually must satisfy a two-part test: (1) does the state have an appropriate reason for the law and (2) is the law properly …


Two Diametrically Opposed Jurists: The Jurisprudence Of Chief Justices Roger B. Taney And Salmon P. Chase, Alexandra M. Michalak Sep 2021

Two Diametrically Opposed Jurists: The Jurisprudence Of Chief Justices Roger B. Taney And Salmon P. Chase, Alexandra M. Michalak

The Cardinal Edge

No abstract provided.


Penises, Nipples, And Bums, Oh My!: An Examination Of How Freedom Of Expression Applies To Public Nudity, Clara Gutwein Aug 2021

Penises, Nipples, And Bums, Oh My!: An Examination Of How Freedom Of Expression Applies To Public Nudity, Clara Gutwein

Indiana Journal of Global Legal Studies

How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order. Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples …


“Corruptly” Continues Consistently Confounding Courts: A New Look At “Corruptly Persuades” In 18 U.S.C. § 1512(B) Obstruction Of Justice, Connor Nelson Aug 2021

“Corruptly” Continues Consistently Confounding Courts: A New Look At “Corruptly Persuades” In 18 U.S.C. § 1512(B) Obstruction Of Justice, Connor Nelson

Utah Law Review

The word “corruptly” presents significant interpretation problems to courts construing the word in statutes. This word has created a circuit split between the Second and Third Circuits over 18 U.S.C. § 1512(b), which forbids corruptly persuading witnesses not to cooperate with federal authorities. The Second Circuit requires defendants to have an improper purpose for persuading a witness not to cooperate. The Third Circuit requires defendants to know they have a corrupt motive behind their persuasion. Rather than declare one approach superior to the other, this Note instead contends that both Circuits achieve the same outcome for two reasons. First, both …


Law, Fact, And Procedural Justice, G. Alexander Nunn Aug 2021

Law, Fact, And Procedural Justice, G. Alexander Nunn

Faculty Scholarship

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain …


Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner Jul 2021

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to


Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell Jul 2021

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

South Carolina Law Review

No abstract provided.


Therapeutic Jurisprudence: Foundations, Expansion, And Assessment, David C. Yamada Jun 2021

Therapeutic Jurisprudence: Foundations, Expansion, And Assessment, David C. Yamada

University of Miami Law Review

Therapeutic Jurisprudence: Foundations, Expansion, and Assessment Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (“TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. …


Foreword: From Personal Life To Private Law: The Jurisprudence Of John Gardner, Scott Hershovitz Jun 2021

Foreword: From Personal Life To Private Law: The Jurisprudence Of John Gardner, Scott Hershovitz

Other Publications

John Gardner was a great philosopher. He was appointed as the Professor of Jurisprudence at Oxford when he was still quite junior in the profession. It was a big job. Ronald Dworkin held the post before Gardner, and H.L.A. Hart before him. Gardner delivered on his promise. He had wide-ranging interests. He wrote about jurisprudence, criminal law, and tort law. His pushed those fields forward—and others too. Gardner’s scholarship was incisive, creative, rigorous, generous, and witty. He had a knack for illuminating law and life too. In recent years, Gardner published two books that tackled tort law: From Personal Life …


European Union Law As Foreign Law, Lior Zemer, Sharon Pardo May 2021

European Union Law As Foreign Law, Lior Zemer, Sharon Pardo

Vanderbilt Journal of Transnational Law

The importance and significance of comparative sources to the development of Israeli jurisprudence is expressed in local legislation and rulings. The impact of foreign law on the development of Israeli law has been analyzed and vindicated in numerous studies in the local legal literature. These studies typically focus on the two most prominent legal systems—-common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that Israel’s legal system is based on these legal regimes and is amended in the spirit of changes made to them. Over the years, …


The Protection Of Free Choice And The Right To Passivity: Applying The Privilege Against Self-Incrimination To Physical Examinations And Documents' Submission, Rinat Kitai-Sangero Apr 2021

The Protection Of Free Choice And The Right To Passivity: Applying The Privilege Against Self-Incrimination To Physical Examinations And Documents' Submission, Rinat Kitai-Sangero

William & Mary Bill of Rights Journal

This Article addresses the question of whether the privilege against selfincrimination should cover physical examinations as well as the obligation to submit documents. This question requires a serious examination of the justifications underlying the privilege against self-incrimination and is of particular relevance in the current age of technological progress that expands the powers assigned to law enforcement agencies to access knowledge and thoughts stored in individuals’ minds. After addressing the comparative law regarding the applicability of the privilege against selfincrimination to physical examinations and to the obligation to submit documents and discussing key justifications for the privilege against self-incrimination, dividing …


Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto Apr 2021

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.


Human Organs Transplantation From Jurisprudence View- نقل وزراعة الأعضاء البشرية في الميزان الشرعي Apr 2021

Human Organs Transplantation From Jurisprudence View- نقل وزراعة الأعضاء البشرية في الميزان الشرعي

UAEU Law Journal

The researcher tackles a widely conflicting topic by jurisprudents, a case which opens doors widely for

Discussions. His research covers the following:

  1. The Right and its Divisions.
  2. Donation of organs and jurisprudence principles.
  3. Transfer of organs from the dead.
  4. opposers allegations and refutation thereof.

He quoted evidences from Holy Quran, Sunnah and jurisprudents explaining jurisprudential principles related to the subject & finally ends up with his conclusions.


Special Features Of Islamic Administrative Jurisprudence (Complaints Law)- خصوصية القضاء الإداري الإسلامي - قضاء المظالم, Aa'ad Hamoud Al Qaisi Apr 2021

Special Features Of Islamic Administrative Jurisprudence (Complaints Law)- خصوصية القضاء الإداري الإسلامي - قضاء المظالم, Aa'ad Hamoud Al Qaisi

UAEU Law Journal

The paper exposes the value of this subject, dividing it into various parts covering identification of Judicial system i n general through detailed study of litigations law, Hesbah Law and Complaints Law.

The researcher attempts to prove the specialty and independence of complaints law under the following topics:

  1. Legitimacy Principal in Islamic Administrative Jurisprudence.

II. Independence of Islamic Administrative Jurisprudence.

Ill. Islamic Administrative Jurisprudence. Is a “specialized law”


Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian Apr 2021

Paternalism, Tolerance, And Acceptance: Modeling The Evolution Of Equal Protection In The Constitutional Canon, John Tehranian

William & Mary Law Review

This Article proposes a legal taxonomy through which we can model changes in interpretations and applications of antidiscrimination principles to best understand the evolution of equal protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal protection cases from the past hundred and fifty years, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of …


Public Policy And The Insurability Of Cyber Risk, Asaf Lubin Apr 2021

Public Policy And The Insurability Of Cyber Risk, Asaf Lubin

Articles by Maurer Faculty

In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …


Legislative Rule Between Firmness And Alteration- الحكم الشرعي بين الثبات والتغير Mar 2021

Legislative Rule Between Firmness And Alteration- الحكم الشرعي بين الثبات والتغير

UAEU Law Journal

This article tackles the legislative rule, at the introduction we gave the meaning of legislative rule according of Scholars of Jurisprudence and Foundations of Jurisprudence, what are the differences between both, then the article was divided into Two Chapters. In Ch. 1, we talked about the firmness of the legislative rule, it includes Two sections, in sec. 1 we discussed the whole firmness of legislative rule, which means the continuous evidence and argument of it in all times and conditions. In sec. 2, we discussed the comparative firmness, which means that legislative rule which is produced from supposed evidence can …


Reality Jurisprudence From A Dogmatism And Suspicion Perspective, Sami Al Salahat Mar 2021

Reality Jurisprudence From A Dogmatism And Suspicion Perspective, Sami Al Salahat

UAEU Law Journal

Reality and livelihood are fields of study for scholars from different backgrounds and interests, especially those of religious fundamentals. Hence reality is a base of showing up a number of practical speculated roles. This was clear in the Islamic jurisprudence, which fits a system of applications through fundamentals and the methods of the fundamental schools.

This paper is trying to discuss the relationship between speculations and suspicions fundamentals in the process of dealing with reality and any developed cases. With out omission of the modern social and human sciences, for a better understanding of the reality chains.

In order to …


The Path Less Traveled: A Natural Law Critique Of Justice Holmes’ Path Of The Law, Alexander Hamilton Mar 2021

The Path Less Traveled: A Natural Law Critique Of Justice Holmes’ Path Of The Law, Alexander Hamilton

Catholic University Law Review

American law and jurisprudence fail to solve fundamental problems in our country. Every lawyer and judge practices, knowingly or unknowingly, from a particular philosophy of law. Much of the practice of law in the United States is rooted in the thought of Justice Oliver Wendell Holmes, Jr. Holmes taught that law was not grounded in morality and logic, but rather the pragmatic rulings of judges. Our law schools and courts today follow Holmes in defining law as merely what a judge says it is. This Comment argues that Justice Holmes’ definition of law was fundamentally flawed and his jurisprudence should …


Avoiding Taxes In Islamic Jurisprudence And Shariah, Sayid Hassan Abdallah Mar 2021

Avoiding Taxes In Islamic Jurisprudence And Shariah, Sayid Hassan Abdallah

UAEU Law Journal

This research discusses the phenomenon of the financer’s refusal to pay taxes and trying to benefit from the loopholes in the writing of the laws and the intentions behind them. It investigates the reasons why the financer may perform such actions and the results of these actions, portraying the efforts exerted in this respect in the field of Jurisprudence and the judicial system in light of Article 107 of Law 187 for the year 1993 of the unified tax system of Egypt. The research also investigates this phenomenon from an Islamic perspective in light of the politics of finance and …


Restraint Of Polygamy In Jurisprudence And Law: A Comparative Study, Qais Abdul Wahab Issa Mar 2021

Restraint Of Polygamy In Jurisprudence And Law: A Comparative Study, Qais Abdul Wahab Issa

UAEU Law Journal

Polygamy is a subject addressed in Sharia that has been established by the Holy Quran and the Prophetic Sunnah. Islamic jurists have debated about this subject in terms of its obligation, permissibility and revocability. To enjoy this right, a man has to be obligated to the legal controls, such that he should be able to maintain more than a wife. Moreover, this person is to take into account social, economic, psychological and health-related aspects of his life and make sure that he is able to maintain justice between all his wives. Furthermore, the man must have no more than four …


Jurisprudence Statements Versus Conventions In Islamic Jurisdiction Mar 2021

Jurisprudence Statements Versus Conventions In Islamic Jurisdiction

UAEU Law Journal

The Shariah text should be understood in light of the linguistic and contextual meaning understood during the time in which the text was issued. There might be a partial or total conflict between the text and the conventions. We should examine whether this conflict is total. In case the conflict was total, this will lead to suspending the text and removing its rule, then the convention will be decayed (void) and it will not be permissible to use. But if the conflict is partial as when the text is general and is in conflict with the conventions in some of …


The Consumer In Legislation, Judicature, And Jurisprudence A Comparative Study, Yousef Shandi Mar 2021

The Consumer In Legislation, Judicature, And Jurisprudence A Comparative Study, Yousef Shandi

UAEU Law Journal

This research study deals with the significance of the term “Consumer” in legislation, judicature, and jurisprudence. It sets out to compare the European and French legislature in their dealings with the consumer. The study points out the importance of defining what constitutes a consumer and the rules governing consumption. The research study concludes that consumer protection must be clearly defined and its application and role specified