Jurisprudence Commons^™

In Opposition Of Cultural Institutionalization Of Speech Following U.S. Intervention Into Foreign Governments, Carmen M. Cusack

Barry Law Review

No abstract provided.

Has Society Become Tolerant Of Further Infringement On First Amendment Rights?, Nicholas Primrose

Barry Law Review

No abstract provided.

Construction Vs. Development: Polarizing Models Of Human Gestation, Richard Stith

Law Faculty Publications

This essay argues that the polarization of our public debate over embryo-destructive research may be due, to a large extent, not to different valuations of individual human life but to different conceptions of the process of gestation, with one group treating the process as a making or construction and the other treating it as a development. These two incompatible models of reproduction are shown to explain the various positions commonly encountered in this debate over the treatment of embryos, and to a significant degree those encountered in the debate over abortion as well. Finally, the historical, theoretical, and intuitive strengths …

Shareholder Vs. Investor Primacy In Federal Corporate Governance, George S. Georgiev

Articles

No abstract provided.

The Age Of Constitutions In The Americas, M C. Mirow

Faculty Publications

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and …

Juror Internet Misconduct: A Survey Of New Hampshire Superior Court Judges, Brooke Lovett Shilo

The University of New Hampshire Law Review

[Excerpt] “The Constitution guarantees criminal defendants the right to a fair trial before an impartial jury and the right to confront the evidence against them. When a juror improperly accesses the Internet during a criminal trial, the defendant is denied these constitutional rights. The problem of outside information entering the courtroom is as old as our judicial system. As early as 1907, Justice Holmes observed that, “The theory of our [criminal justice] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, …

Procedural Due Process: The Distinctions Between America And Abroad, Ronald Smith

Faculty Scholarship

This paper was written in an effort to highlight the guarantees of procedural due process that America provides to its own citizens, as well as those that are of international citizenship. In so doing, American Due Process Jurisprudence is compared to the minimum standards that the United Nations stipulates via the United Declaration on Human Rights. Also included is an accounting of actual due process deprivations that have been inflicted upon persons that should have been entitled to nothing less than the utmost of legal protections whilst visiting a country, and although the arresting country promised to abide by the …

Deep In The Heart Of Texas: How Carbon Sequestration Will Affect Valuation Of The Subsurface., Sarah Anne Lishman

St. Mary's Law Journal

Abstract Forthcoming.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

In The Name Of The Son: The Strategic Importance Of Prenatal Personhood In Abortion Law, Alejandro Madrazo

Cardozo Journal of Equal Rights & Social Justice

Prenatal personhood has been used as a vehicle for restricting abortion rights and other reproductive rights. This Article explores how, through narrative, the question of the status of prenatal life shapes the structure of debates over abortion law and reproductive rights. Whether prenatal hfe is deemed a person or not determines the narrative structures that can be deployed around abortion and, in consequence, strategically orients these debates by determining the key questions that must be addressed and the scope of answers that can be provided. By carrying out a comparative analysis of opinions of local, national and international courts from …

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today.

Robert Pickton is thought to have murdered almost 50 of …

Splits In The Rock: The Conflicting Interpretations Of The Seminole Rock Deference Doctrine By The U.S. Courts Of Appeals, Kevin O. Leske

Faculty Scholarship

No abstract provided.

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal

Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Danger Of Nonrandom Case Assignment: How The Southern District Of New York's "Related Cases" Rule Shaped Stop-And-Frisk Rulings, Katherine A. Macfarlane

Michigan Journal of Race and Law

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen …

The Return Of Constitutional Federalism, Logan E. Sawyer Iii

Scholarly Works

This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of …

Comments: Avoiding Those Wearing Propeller Hats: The Use Of Blue Ribbon Juries In Complex Patent Litigation, Jordan M. Halle

University of Baltimore Law Review

I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these... How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance.

Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95,115 (C.C.S.D.N.Y. 1911), affd in part, rev'd in …

J.L.'S Time Bomb Still Ticking: How Navarette's Narrow Holding Failed To Address Important Issues Regarding Anonymous Tips, Andrew B. Kartchner

University of Baltimore Law Review

The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers one free swerve before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

University of Baltimore Law Review

No abstract provided.

Institutional Stress And The Federal District Courts: Judicial Emergencies, Vertical Norms, And Pretrial Dismissals, Daniel J. Knudsen

Utah Law Review

This Article examines the effects of judicial emergencies on the federal district courts. The Administrative Office of the U.S. Courts declares judicial emergencies when a weighted statistic of filings and vacancy days exceeds certain thresholds. This Article presents evidence on the relationship between emergency status in a judicial circuit and the frequency of pretrial disposition in federal district courts within that circuit: a federal district court is statistically more likely to dismiss a case before trial if its corresponding circuit court is in emergency. This evidence suggests that emergency status may affect normative expectations between the federal district courts and …

Foreword – Institutional Responsibility For Sex And Gender Exploitation, Nancy Levit

Faculty Works

Organizations are increasingly being held accountable for sex and gender exploitation perpetrated by individuals who are associated with them. The idea of litigating toward gender justice by making institutional actors responsible for various forms of sex and gender discrimination unites the articles in this Symposium.

This Foreword begins by tracking the evolution of tort law from its early vindication of isolated individual claims to its much more recent incarnation as an instrument of social reform for collective interests. The second part addresses legal impediments that prevent redress of certain types of gendered harms — ranging from areas that are virtually …

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

A Guide To Properly Using And Responding To Requests For Admission Under The Texas Discovery Rules., Robert K. Wise, Katherine Hendler

St. Mary's Law Journal

This article’s purpose is to provide a guide for properly using and responding to requests for admission under the Texas discovery rules. Requests for admission are an extremely effective discovery tool when used and responded to properly. Their use can save litigants considerable time and expense by eliminating and narrowing the issues involved in the cause of action. Often misunderstood, requests for admission are perhaps the least used of the major discovery devices available to litigants. Even though requests for admission have the potential to eliminate unnecessary proof at trial, streamline discovery and motion practice, and reduce pretrial and trial …

What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang

UIC Review of Intellectual Property Law

This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

The Possibility Of Private Rights And Duties, Adam J. Macleod

Faculty Articles

Is it possible for us to know what we owe others, or do we need the state to tell us? To ask the question this way could be understood as a provocation. It might suggest that the possibility of private rights and duties - a possibility that common law takes for granted and which lawyers witness in their daily practice threatens the foundations of the legal realist jurisprudential project and the liberal political project. But it is not my intention here to attack those projects. I simply want to consider the possibility that legal realism and liberalism might not be …

¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton, Jorge R. Roig

Scholarly Works

La carrera del juez presidente Federico Hernández Denton como juez del Tribunal Supremo de Puerto Rico abarca cuatro distintas décadas durante las cuales la sociedad puertorriqueña ha experimentado dramáticos cambios. Desde los intentos por eliminar el hostigamiento sexual y la violencia doméstica hasta el desarrollo de los derechos civiles de los individuos y las parejas homosexuales; desde el cierre de las urbanizaciones adineradas y el enclaustre de la clase media hasta los despidos masivos en el gobierno y la constitucionalización de las escoltas de los ex gobernadores; los cambios experimentados por los puertorriqueños no nos han tocado a todos por …