Law Commons^™

The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi

Touro Law Review

The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

The True Meaning Of "Going Armed" In The Statute Of Northampton: A Response To Patrick J. Charles, Richard E. Gardiner

Cleveland State Law Review

In the debate over the meaning of the right to keep and bear arms guaranteed by the Second Amendment, some writers have argued that the prohibition in the 1328 English Statute of Northampton on "going armed" referred to carrying weapons, thus purportedly showing that regulation of carrying weapons was well known and established when the Second Amendment was adopted. For the first time, this Article reveals, through a thorough analysis of medieval royal proclamations and acts of parliament, well-regarded legal treatises, literature of the time, and English case law, that "going armed" did not refer to carrying weapons, but rather …

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

The Indonesia Legal Education: Advancing Law Student’S Understanding To Real Legal Issues, Antarin Prasanthi, Daryono .

The Indonesian Journal of Socio-Legal Studies

Law has been claimed to be insensitive to the real legal issues that led to being unjust and controversial. Those real legal issues most commonly coexisted with the underlying social, cultural, economic, and political issues. In a civil law country, Indonesia, however, the courts often denied those non-legal issues into consideration. Similarly, legislative rules only focus on legal doctrines. They assumed that those non-legal issues were irrelevant to the court's role as the guardian of the rule. This misled understanding is more likely caused by a lack of comprehension of the multifaceted legal problems. One of the causes is the …

Lessons From Psychology For Law Practice Management, Peter G. Glenn

Dickinson Law Review (2017-Present)

No abstract provided.

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

Arkansas Practice Materials: A Selective Annotated Bibliography, Jessie Wallace Burchfield, Melissa Serfass

Faculty Scholarship

Whether you are a legal professional or a novice legal researcher, this annotated bibliography of Arkansas practice materials provides current and relevant state-specific information about available resources. The bibliography integrates online and print resources, grouped by topic rather than format. Each source is annotated with helpful information.

Detailed information about primary legal materials such as court cases, statutes and administrative regulations is included. Information about secondary sources such as treatises, practice manuals, forms, and websites, is also covered.

It is organized in five main sections: Primary Materials, Government Resources, State Specific Resources, General Jurisprudence, and Practice Materials by Topic.

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall

Touro Law Review

Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Case Law On American Indians August 2018-2019, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Of Dangers, Conditions, Children, And Maturity: A Plea For A Comprehensible Standard In Long-Standing Rules, Maureen Straub Kordesh

Northern Illinois University Law Review

This Article explores the common law doctrine of attractive nuisance in Illinois and proposes a more detailed explication of the rule. The doctrine lies in the junction between tort and contract, which might account for the incompleteness of its presentation. It argues that because law students are a significant audience for case law, the language of such rules should be as detailed and clear as possible.

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Orin Kerr

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

Touching, Tapping, And Talking: The Formation Of Contracts In Cyberspace, Mark E. Budnitz

Mark E. Budnitz

No abstract provided.

Looking Beyond The Vague Terms In Singapore's Fake News Laws, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

Protection from Online Falsehoods andManipulation Act (Pofma), some criticised it for being too vague. Pofma contains words and phrases whose meaning is not explicitlyclear, e.g. statements that are “falseor misleading”, but does not define “misleading”. But case law gives us aclearer understanding of what “misleading” means

Touching, Tapping, And Talking: The Formation Of Contracts In Cyberspace, Mark E. Budnitz

Nova Law Review

No abstract provided.

Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino

Nova Law Review

No abstract provided.

The Best And Worst Of Contracts Decisions: An Anthology, Rachel Arnow-Richman, Daniel D. Banhizer, Scott J. Burnham, Et Al.

Florida State University Law Review

The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches-in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and …

The Best And Worst Of Contracts Decisions: An Anthology, Daniel Barnhizer Et Al.

Florida State University Law Review

The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches-in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and …

A Day In The Life Of Tort Law, Douglas H. Cook

Maine Law Review

What would one day's worth of tort law look like? We usually receive our doses of the law in measures other than per diem: by the case, by the brief, by the article, or by the treatise. There is, of course, a unity in each of those units; each one collects only those authorities that bear upon certain focused aspects of the law. For example, an appellate brief or a law review article is often a compendium of cases dealing within a narrow topical range, cases drawn from a span of many different days, years, or even decades. One way …

Equality At Stake: Connecting The Privacy/Vulnerability Cycle To The Debate About Publicly Accessible Online Court Records, Jacquelyn A. Burkell, Jane Bailey

FIMS Publications

A considerable amount has been written about the privacy implications of publishing court and tribunal records online. In this article the authors examine the linkages between privacy and vulnerability for members of marginalized communities and, drawing on Calo’s “vicious cycle” of privacy and vulnerability, suggest that publicly accessible online court records represent an equality issue as well. Drawing on social science research and privacy theory, the authors demonstrate the potentially disproportionate effect of online court records on members of marginalized communities. They then examine Canadian case law, legislation and policy that impose restrictions on public disclosure of information from court …

2017 Annual Survey: Recent Developments In Sports Law, Jordan Lysiak, Katherine Hampel

Marquette Sports Law Review

None

Distributive Principles Of Criminal Law, Paul H. Robinson, Tyler Scot Williams

All Faculty Scholarship

This first chapter from the recently published book Mapping American Criminal Law: Variations across the 50 States documents the alternative distributive principles for criminal liability and punishment — desert, deterrence, incapacitation of the dangerous — that are officially recognized by law in each of the American states. The chapter contains two maps visually coded to display important differences: the first map shows which states have adopted desert, deterrence, or incapacitation as a distributive principle, while the second map shows which form of desert is adopted in those jurisdictions that recognize desert. Like all 38 chapters in the book, which covers …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Michigan Journal of Gender & Law

This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of …

Recent Case: Syed V. M-I, Llc, Lowell Ritter

Notre Dame Law Review Reflection

In a case of first impression for the federal appellate courts, the Ninth Circuit Court of Appeals held in Syed v. M-I, LLC that when a liability waiver is included in the document that contains the disclosure and authorization information, the FCRA is violated based on Section 1681b(b)(2)(A)’s mandate that the document consist “solely” of the disclosure and authorization. More importantly, the court held that including such a liability waiver was a willful violation of the statute, potentially resulting in increased penalties.

A Guide To Legal Research In Virginia, Joyce Manna Janto

Law Faculty Publications

The primary goal of this new edition of A Guide to Legal Research in Virginia is to expand coverage in several chapters and to add a new chapter covering legal ethics materials. This edition also notes changes in the URLs for many Virginia government websites. Most of these changes are likely based on changes in administrations and technological upgrades. The researcher should be aware that there is a lack of consistency among Virginia government web addresses. Changes in the operation and coverage of the major legal databases are noted where appropriate. Today, Virginia practitioners have a wide variety of resources, …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Michigan Law Review

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …