Jurisprudence Commons^™

Strategies To Bring Down A Giant: Auer Deference Vulnerable After Reprieve In Kisor V.Wilkie, Shelby M. Krafka

Villanova Law Review (1956 - )

No abstract provided.

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Need For A Historical Exception To Grand Jury Secrecy In The Federal Rules Of Criminal Procedure, Daniel Aronsohn

Loyola of Los Angeles Law Review

No abstract provided.

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

Virtual Pretrial Jurisdiction For Virtual Contacts, Max D. Lovrin

Brooklyn Law Review

Personal jurisdiction is a threshold requirement for any civil court’s constitutional exercise of adjudicative authority over a defendant, and one of civil procedure’s most fundamental concepts. The Supreme Court is acutely aware of difficulties facing personal jurisdiction doctrine in an evolving world and the need for jurisprudential solutions to those problems. But recent inconsistent trends in Supreme Court personal jurisdiction jurisprudence have served to further complicate the doctrine. Such overcomplication often leads to unpredictability, which both increases expenses for litigants and creates additional work for the already overburdened federal civil docket. This problem is exacerbated when litigation arises out of …

Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam

Brooklyn Law Review

The landscape of M&A litigation in Delaware has undergone a substantial transformation within the last decade. Almost every transaction involving the acquisition of a publicly traded company has attracted stockholder litigation. This note considers Delaware’s attempt to strike the right balance between deterring frivolous litigation and ensuring adequate stockholder protections. In particular, this note considers the social utility of Delaware’s appraisal remedy and the practice of “appraisal arbitrage.” This note puts forth reasons as to why a healthy market of appraisal arbitrage benefits all stockholders: a meaningful threat of appraisal litigation encourages better sales practices in the market for corporate …

Rewriting Judicial Recusal Rules With Big Data, Raymond J. Mckoski

Utah Law Review

Big data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a …

Violating The Inviolate?: Divided Tennessee Supreme Court Upholds Constitutionality Of Noneconomic Damage Caps, Focuses On Right To Jury Trial, Bailey D. Barnes

Faculty Publications

On Feb. 26, in McClay v. Airport Management Services LLC, the Tennessee Supreme Court upheld the constitutionality of the noneconomic damage cap provisions of the Tennessee Civil Justice Act of 2011. The court’s analysis primarily centered on the constitutional right to a trial by jury. The justices split on whether the General Assembly maintains the authority to alter or abridge the state’s common law when doing so affects a constitutional right.

The three-justice majority concluded that noneconomic damage caps do not violate the right to a jury trial, though one of those justices authored a concurring opinion declaring the issue …

Drug Courts And The Following Of The Federal Guidelines, Charles James Souza

Master’s Theses and Projects

During the 1980’s, drug offense were running high within the United States. The court system along with the police and other fields were forced to form other methods of dealing with offenders who have a substance abuse problem. In 1989, the first drug court in the United States was formed in the state if Florida. The idea was to create a therapeutic method to help those who are committing non-violent criminal acts due to their addiction. The goal of drug court was to get offenders the treatment they needed so they would not resort to criminal activity. Drug court personal …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Judge, J. Peter Byrne

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

An Advocate's Perception, Margaret D. Mcgaughey

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

A Tribute To Judge Coffin, Stephen Breyer

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

Judge Frank M. Coffin, Edmund S. Muskie

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

Vincent L. Mckusick And The Maine Rules Of Civil Procedure: A Thirty-Five Year Perspective, L. Kinvin Wroth

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

Structure Of The Maine Court System, 1956-1991, Edward S. Godfrey

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

Law As Integrity: Chief Justice Mckusick's Common Law Jurisprudence, Eric R. Herlan

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

Vincent L. Mckusick: Chief Justice Of The Maine Supreme Judicial Court, Fred C. Scribner Jr.

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

The National And International Outreach Of Justice Vincent L. Mckusick, Roswell B. Perkins

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

Vincent L. Mckusick, William H. Rehnquist

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …

One Step Forward, One Step Back: Emergency Reform And Appellate Sentence Review In Maine, Amy K. Tchao

Maine Law Review

Perhaps in no other area of the law is a trial court's power greater than when it is given the task of criminal sentencing. Historically and traditionally, the trial court judge has been given the widest latitude of discretion in determining a proper sentence once a criminal defendant has been found guilty. Indeed, the task of sentencing has been deemed a matter of discretion rather than a question of law. As a result, trial judges historically have not articulated reasons for the sentences that they impose. However, with very few standards or criteria to measure the appropriateness of their decisions, …

Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan

Indiana Journal of Constitutional Design

Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …

State-Circuit Split: Reconciling Tennessee Damage Caps After Lindenberg And Mcclay, Bailey D. Barnes

Faculty Publications

A divided panel of jurists on the United States Court of Appeals for the Sixth Circuit invalidated Tennessee's caps on punitive damages in Lindenberg v. Jackson National Life Insurance Company on December 21, 2018. The Sixth Circuit, sitting en bane, denied an application to rehear the case. A year later, the United States Supreme Court denied the petitions for writs of certiorari of both Jackson National Life Insurance Company and the State of Tennessee. Meanwhile, the Tennessee Supreme Court heard a challenge, via certified question from the Middle District of Tennessee, to the Volunteer State's statutory limits on non-economic damages. …

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 …

Leviathan Goes To Washington: How To Assert The Separation Of Powers In Defense Of Future Generations

Florida A & M University Law Review

The separation of powers was originally drawn from the common law of England, vindicated during the American Revolution as a fundamental bulwark against tyranny, and constitutionalized in the first three articles of the U.S. Constitution. It was adopted as an assurance that the present generation would not assert dead-hand control over the future of American society for mere efficiency, vanity, or greed. The separation of powers, therefore, exists to empower future generations to contend for their rights of life, liberty, and property. Both the long history of the separation of powers and the recent, controversial practices of multinational government contractors …