Jurisprudence Commons^™

Hardship And Hard Drives: Artificial Intelligence, Judicial Decision-Making, And The Discharge Of Student Loan Debt, Forrest Finn

Canadian Journal of Law and Technology

Section 178(1.1) of the Bankruptcy and Insolvency Act allows individuals to apply for discretionary relief from the non-dischargeable nature of student loan debts. Subparagraph (b) of this relief establishes a ‘‘hardship” requirement. The elements for this hardship requirement have been developed and applied by judges in the form of standards. The issue addressed in this paper is whether these standards are applied predictably. Using both statistical analysis and machine learning algorithms, this paper demonstrates that judicial decision-making on the hardship requirement is predictable. This predictability has significant implications. Most importantly it suggests that predictive software could be created for s. …

Legal Sets, Jeremy N. Sheff

Cardozo Law Review

In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

A Second Opinion: Can Windsor V. United States Survive President Trump’S Supreme Court?, Artem M. Joukov

Journal of Law and Policy

This Article examines President Donald Trump’s recent recomposition of the United States Supreme Court and the potential effects on Windsor v. United States and its progeny. The Article considers whether the shifting balance of the Court may lead to reconsideration of Windsor, particularly via attempted exploits of the weaknesses in the standard of review applied to reach the decision. The Article will conclude that while revolutionary, Windsor lacked the doctrinal clarity of its offspring, Obergefell v. Hodges, and therefore may be at greatest risk of reversal by the increasingly conservative Court. In particular, the Court may rely on the conflict …

Reframing The Affirmative Action Debate To Move Beyond Arguments For Diversity And Interest Convergence, Adrian Jamal Mclain, Steven L. Nelson

Barry Law Review

No abstract provided.

Self-Deportation Nation, K-Sue Park

Georgetown Law Faculty Publications and Other Works

“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their …

Cosmopolitan Democracy: Re-Evaluation Of Globalization And World Economic System, Muhammad Dalhatu

Dissertations, Theses, and Capstone Projects

This thesis examines cosmopolitan democracy theory as a method of addressing the problems of globalization. I begin by introducing the concept of “cosmopolitan democracy.” I then proceed to discuss contemporary political climate and its relation to critiques of globalization. Finally, I conclude by examining the elaborations of cosmopolitan democracy by various theorists as a way of addressing these problems. Chapter 1 introduces the work of David Held who introduced the concept in his book, Cosmopolitan Democracy and the Global Order: Reflections on the 20^th Anniversary of Kant’s “Perpetual Peace.” Cosmopolitan democracy refers to global governance through democratic theory. Held …

All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D.A. Jeremy Telman

Barry Law Review

No abstract provided.

A Comprehensive Rethinking Of Equal Protection Post-Obergefelll: A Plea For Substantivity In Law, Shannon Gilreath

Barry Law Review

No abstract provided.

States As Civil Rights Actors: Assessing Advocacy Mechanisms Within A State’S Legislative, Executive, And Judicial Branches, Jennifer Safstrom

Barry Law Review

No abstract provided.

“There’S Voices In The Night Trying To Be Heard”: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi M. Weinstein

Brooklyn Law Review

This article carefully examines, through a therapeutic jurisprudence framework, the likely impact of the United States’ ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on U.S. society’s sanist attitudes towards persons with mental disabilities. Although the United Nations ratified the CRPD—the most significant historical development in the recognition of the human rights of persons with mental disabilities— in 2008, the United States has yet to ratify it. In this article, we consider whether the CRPD, if ratified, is likely to finally extinguish the toxic stench of sanism that permeates all levels of society. We …

Legal Dilemmas Facing White House Counsel Int He Trump Administration: The Costs Of Public Disclosure Of Fisa Requests, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Is Reasonable Doubt Self-Defining?, Lawrence T. White, Michael D. Cicchini

Villanova Law Review (1956 - )

No abstract provided.

Criminalizing The Other: Exploring The Impact Of The Netherlands' Adaptation Of Prosecutorial Guidelines On Sentencing Disparities, Alia Nahra

Independent Study Project (ISP) Collection

This research explores the impact of the 2015 institution of prosecution guidelines in the Netherlands. Prior to this switch, the Openbaar Ministerie operated using a punishment point system, which provided a mathematical formula with which to decide sanctions. Though the motivation of this change was to make the overall system more efficient and enable individual prosecutors to consider each case in a customizable and more equitable form, this research demonstrates that the change has served instead as a perpetuator (and in some cases, facilitator) of the persistent ethnic and gender biases already at work in the Netherlands. The social and …

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Panel 6: The Median Justice

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Jonathan Adler, Lee Epstein, and Sasha Volokh

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

University of Michigan Journal of Law Reform

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law enforcement …

Citation Stickiness, Kevin Bennardo, Alexa Z. Chew

The Journal of Appellate Practice and Process

This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties' briefs and then again in the court's opinion. Imagine that the parties use their briefs to toss citations in the court's direction. Some of those citations stick and appear in the opinion—these are the sticky citations. Some of those citations don't stick and go unmentioned by the court—these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court's opinion. These authorities are endogenous—they spring from the court itself. …

Defending White Space, Addie C. Rolnick

Cardozo Law Review

Police violence against minorities has generated a great deal of scholarly and public attention. Proposed solutions-ranging from body cameras to greater federal oversight to anti-bias training for police-likewise focus on violence as a problem of policing. Amid this national conversation, however, insufficient attention has been paid to private violence. This Article examines the relationship between race, self-defense laws, and modern residential segregation. The goal is to sketch the contours of an important but undertheorized relationship between residential segregation, private violence, and state criminal law. By describing the interplay between residential segregation and modern self-defense law, this Article reveals how criminal …

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Prosecuting The Executive, Tiffany R. Murphy

San Diego Law Review

A special counsel is appointed to investigate and potentially prosecute any criminal activity involving those in the Executive Branch. When an attorney general makes such a decision, the individual should consider not only the scope of the appointment but whether the special counsel will protect the fundamental rules of law upon which the Constitution rests; no one person is above the law. Recent history illustrates the abuses of the special prosecutor’s role where it was used as a political weapon or for low level officials. Instead, a special counsel should be used only when the crisis is severe enough that …

Catch Me If You Can: Claiming Jurisdiction Over An Overseas Defendant: Shanghai Turbo Enterprises Ltd V Liu Ming [2019] Sgca 11, Aaron Yoong, Nguyen Sinh Vuong

Research Collection Yong Pung How School Of Law

The appellant, Shanghai Turbo Enterprises Ltd (“Shanghai Turbo”), is a Singapore-listed company that owns Hong Kong-incorporated Best Success (Hong Kong) Ltd, which in turn owns China-incorporated Changzhou 3D Technological Complete Set Equipment Ltd (“CZ3D”). The respondent, Liu Ming (“Liu”), owned approximately 30% of the shares in Shanghai Turbo. He was also a director of all three companies, and held other management positions there. In April 2017, Shanghai Turbo fired Liu from all his positions in the companies, allegedly because of declining levels of profit under his management. Subsequently, Shanghai Turbo filed a suit against Liu for breaching his service agreement …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Washington and Lee Law Review

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Half A Century Of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, And Activism, David M. Driesen, Thomas M. Keck, Brandon T. Metroka

Washington and Lee Law Review

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.

Trump, Trade, And Trabajo: Renegotiating Nafta's Labor Accord In A Fraught Political Climate, Lance A. Compa

Indiana Journal of Global Legal Studies

Quitting the Trans-Pacific Partnership (TPP) and demanding renegotiation of the North American Free Trade Agreement (NAFTA)- along with its supplemental labor pact, the North American Agreement on Labor Cooperation (NAALC)-were among the first actions of the new U.S. Administration in 2017. NAFTA renegotiations concluded for the time being-in October 2018 with announcement of the United States-Mexico-Canada Agreement (USMCA) to replace NAFTA.

Controversial proposals on the bargaining table contained important implications for employment, labor rights, and labor standards in North America. This paper reviews the status of negotiations, the risks of losing the first-ever international instrument linking trade and labor standards …

An Alternative Path To Rule Of Law? Thailand's Twenty-First Century Administrative Courts, Frank Munger

Indiana Journal of Global Legal Studies

This study examines why courts made sense to those who established them and how the courts' authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiffs legal rights. Administrative courts serve multiple functions, not only by exercising power, in the famed words of Chief Justice Marshall, "to say what the law is," 13 but also by decentering the concentrated power of Thailand's insular and tradition bound ministries as well as its …

Legal Realism: Unfinished Business, Ramsi A. Woodcock

Law Faculty Scholarly Articles

No abstract provided.

The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis

Journal Articles

No abstract provided.