Jurisprudence Commons^™

Restoring Accountability In Freedom Of Expression Theory: Public Libel Law And Radical Whig Ideology, Randall Stephenson

Osgoode Hall Law Journal

As leading common law jurisdictions grapple with the Internet’s impact on defamation law, comparative legal scholarship has revealed long-standing problems with its underlying theoretical justifications. Specifically, public libel doctrine is commonly supported by appeals to democratic theory in the abstract. Accountability concerns most relevant to adjudicating public libel cases are thus routinely overlooked. This article aims to diagnose the causes of these theoretical inaccuracies, describe their impact on public libel law, and translate their significance for law reform. Through exploring eighteenth-century libertarian thought, we highlight the foundational importance of accountability and the checking function rationale to democratic theory and governance. …

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its …

The Character Of The Business: Looking Through "Broken Windows" For Liability In Mass Shootings & Other Third-Party Criminal Acts, Madison Shepley

Seattle University Law Review

Mass violence and third-party criminal acts are increasing in prevalence, and Washington State's current prior incidents liability analysis does not fully address public policy concerns of safety. This Comment argues for an expansive standard of the definition of character of the business that incorporates a sociological understanding of the effects of an atmosphere of crime. It provides an overview of the various state analyses for determining liability for third-party criminal conduct and breaks down how states have incorporated the concept of character of the business as a factor in liability analysis, ultimately turning to a discussion of how the implementation …

Mental Health Jail Diversion: A Therapeutic Approach To Offending In Twenty-First Century America, Ryan J. Parent

Criminology Student Work

This analysis is concerned with understanding the facets of criminal justice diversion programs that successfully improve the mental wellbeing of participants and, as a subsequent effect, reduce offending amongst the mentally ill populous in the United States. An inquiry of pre-program and post-program data from both adult and juvenile mental health specific programs reveals that participation amongst both groups shows a meaningful reduction in new/repeat offending in comparison to non-participants. The data shows that the expansion of law enforcement Crisis Intervention Team’s (CIT’s) has a compounding effect to the positive results. A review of these programs in Australia indicates that …

The Four Discourses Of Law And Arthur Jacobson's Legal Plenum, Jeanne L. Schroeder

Cardozo Law Review

I concentrate on an early work of Arthur Jacobson's that he published just as I started my academic career. Not only did it greatly impress me at the time, but when I reread it recently I was struck with how much it had influenced my thinking. His distinction between correlative and dynamic jurisprudences echo in my Lacanian-based jurisprudential theory of the four discourses of law.

Arthur Jacobson And The Normativity Of Jewish Law, Uriel Procaccia

Cardozo Law Review

Arthur Jacobson has been for several decades a leading expert in contract law; he was recruited to edit the supplement of the most respected treatise on the subject, Corbin on Contracts, and has shared his expertise, to great acclaim, with generations of colleagues and students. His interest in Jewish Law, on the other hand, is of a more recent vintage. But it appears that since this recent calling took a grip on his mind it captured his intellectual curiosity to the point of dominating the rich array of his other inquisitive interests with the sole exception, perhaps, of his …

The Law Of The Soul, Arthur J. Jacobson

Cardozo Law Review

Do you believe that human beings have souls, and dogs, for example, do not? And if you believe that humans have souls, then must you also believe that in order for the soul to be a soul it must be immortal? Or can the soul be born with us and die with us, never to return, and still be a soul? And if you believe that it must be immortal, then must you also believe that if it is not immortal, then it is just a psyche - the forms of awareness, desiring and imagining that humans share with all …

The Magic Of Arthur Jacobson, Paul Verkuil

Cardozo Law Review

I have always held Arthur in affectionate regard. When I first arrived at Cardozo as Dean over 20 years ago (parachuted in really), I was anxious to get to know the faculty. (Monroe Price had been my only deep contact: in 1982 we spent several weeks in Israel as part of a group of law deans when I was at Tulane.) At Cardozo, Arthur was among the first to welcome me and make me feel comfortable (wonderful qualities many have also experienced, I'm sure). Arthur is a kind of charm machine, and at his best, while he is no climate …

Remembrance, One Person, One Vote: The Enduring Legacy Of Joaquin Avila, Robert Chang

Seattle Journal for Social Justice

No abstract provided.

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Law Faculty Scholarly Articles

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article …

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Cardozo Law Review

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article discusses these …

Preface By The Special Editor: A Benediction, An Exhortation, Michael Pantazakos

Cardozo Law Review

In honor of Arthur Jacobson, may we study the works offered herein with both diligence and delight as a living benediction.

Comparative Hermeneutics Of Constitutional Revision Clauses And The Question Of Structural Closure Of Legal Systems, Otto Pfersmann

Cardozo Law Review

Arthur Jacobson is, with J. David Bleich, the author of a wonderful book on Jewish Law, along with very fine papers on difficult issues in this domain, as well as in constitutional law. As he clearly and convincingly argues, problems of interpretation are of particular difficulty and interest, when we try to understand and apply the message of a revelation as legal provisions, especially under the circumstances of the diaspora. How can the requirements given by divinity itself to mankind or to one particular people bound by a covenant give rise to controversy, conflicting understandings and even conflicting concretizations? Jacobson …

Loyalty And Betrayal, Bernhard Schlink

Cardozo Law Review

Role theory identifies people through the roles they choose and the way in which they coordinate them. That is no different from what we do when we meet someone and try to gain a sense of him or her. We ask about their profession, where they studied, enquire about their spouse and children, leisure activities, social and political engagement, and which clubs or church they attend. We try to discover the meaning that these various roles hold for the person and whether such roles are endowed with stronger or weaker emotional significance, are experienced as being more or less essential …

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Cardozo Law Review

It is black-letter law that the U.S. Supreme Court's takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court's takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central 'to this Article's reexamination. Instead, this Article's narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

Loyalty Without Borders: In Honor Of Arthur Jacobson, George P. Fletcher

Cardozo Law Review

The essence of loyalty is partiality - putting friends, political party, a particular country ahead of its competitors. The ambiguity of this definition lies in question: putting the recipients of loyalty close in what way? In the case of loyalty to a spouse, the loyal lover forswears sex with others. In voting and supporting, say, the Democrats, one does not contribute to the Republicans. By remaining loyal to the United States, one does not offer to join the military or serve in the civil defense force of another country.

Gandhis Of The Deep State, Michael E. Herz

Online Publications

It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?

Victim Satisfaction With Reparations From The International Criminal Court: An Examination Of Child Soldier Cases From Kenya And Sexual Violence Cases From The Democratic Republic Of Congo, Brittany Foutz

Doctor of International Conflict Management Dissertations

This dissertation addresses how the implementation and use of reparation mechanisms affects the satisfaction of child soldier and sexual violence victims of the International Criminal Court (ICC), the world’s court. The existing literature is lacking regarding measuring the level of satisfaction of victims that have received reparations from the International Court, especially from a legal positivist approach. The researcher collected data through 42 total semi-structured interviews. These interviews were conducted with victims that have received individual and collective reparations, and victims that have not received reparations, all from the International Criminal Court’s Trust Fund for Victims. Other interviews were conducted …

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at the …

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to …

Derecho Penal Sustantivo, Luis E. Chiesa

Journal Articles

No abstract provided.

Can You Hear Me Now: The Impacts Of Prosecutorial Call Monitoring On Defendants' Access To Justice, Hope L. Demer

South Carolina Law Review

No abstract provided.

How Trust-Like Is Russia's Fiduciary Management? Answers From Louisiana, Markus G. Puder, Anton D. Rudokvas

Louisiana Law Review

The article discusses estate trust management and fiduciary management under the Civil Code of the Russian Federation, its comparison to the trust law in Louisiana and some examples of Russian jurisprudence on the topics.

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Considering The Costs: Adopting A Judicial Test For The Least Restrictive Environment Mandate Of The Individuals With Disabilities Education Act, Edmund J. Rooney

Journal of Legislation

No abstract provided.

The Case Against Absolute Judicial Immunity For Immigration Judges, Jacqueline Stevens

Minnesota Journal of Law & Inequality

A federal regulation states that immigration hearings shall be open to the public. Courts and scholars also have located a right to observe these proceedings in the First Amendment. And yet immigration judges (IJ) have excluded members of the press and other observers from hearings for no stated legal reasons, thus effectively eliminating public scrutiny of proceedings that affect millions of citizens and non-citizens in the United States. In response to a lawsuit pursuing monetary, injunctive, and declaratory relief after an IJ ordered guards to remove a reporter from a federal building, an Eleventh Circuit panel held IJs have absolute …

Absurdity In Disguise: How Courts Create Statutory Ambiguity To Conceal Their Application Of The Absurdity Doctrine, Laura R. Dove

Nevada Law Journal

No abstract provided.