Jurisprudence Commons^™

Twenty-Five Years Of The Adoption And Safe Families Act, Eve M. Brank

Court Review: Journal of the American Judges Association

The year 2022 marks the 25th anniversary of President Clinton signing into law the Adoption and Safe Families Act (ASFA). Enacted in November of 1997, ASFA was a bipartisan federal law intended to address concerns with the foster care and adoption systems. With fiscal incentives attached, states quickly adopted complementary ASFA legislation.

At its core, ASFA changed the primary objective from family reunification to the child’s health and safety. In doing so, ASFA sought to decrease the amount of time a child spent without a permanent home by limiting how long a child could spend in foster care. Referred to …

The Lost Cause Of Free Speech, Mary Anne Franks

Articles

No abstract provided.

Latcrit At Twenty-Five And Beyond - Organized Academic Activism And The Long Haul: Designing "Hybridized" Advocacy Projects For An Age Of Global Disruption, Systemic Injustice, And Bottom-Up Progress, Francisco Valdes, Steven W. Bender, Jennifer J. Hill

Articles

On the monumental occasion of the twenty-fifth anniversary celebration of LatCrit (Latina and Latino Critical Legal Theory, Inc.) as a still thriving and persevering community of critical scholars and activists, this Article offers some reflections on where we have been, where we are now, and where we might go next together as academics and organizers of long-term collective action. Against the current disruptions of a global pandemic, aggravated by planetary climate collapse, disinformation campaigns, and the organized top-down sabotage of U.S. democracy itself, our community responses going forward must be both more democratic and decentralized than ever, as well as …

Remapping Constitutional Theory, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin …

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo

Touro Law Review

Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …

Roadmap To Reconciliation Ii: Ruminations On The Need For Integrity In Intellectual Interfaith Engagement, Shlomo Pill, Ariel J. Liberman

Touro Law Review

This article builds on the framework for a law school-based academic center for Jewish-Muslim engagement laid out in our previous work, Roadmap to Reconciliation. In this follow-up essay, we outline standards, or ground-rules, for the individuals and institutions engaged in academic interfaith discussions of the kind that would occur in our proposed Center. Chief among these considerations is the need to respect the integrity of each respective faith tradition involved in such conversations. We argue for an interfaith dialogic modeled on the insights of Rabbi Joseph B. Soloveitchik, and discuss how his reflections on the potentials and risks of interfaith …

Mass Arbitration, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, the class action has been in the crosshairs of defense-side procedural warfare. Repeated attacks on the class action by the defense bar, the U.S. Chamber of Commerce, and other defense-side interest groups have been overwhelmingly successful. None proved more successful than the “arbitration revolution”—a forty- year campaign to eliminate class actions through forced arbitration provisions in private contracts. The effects for civil justice have been profound. Scores of claims vanished from the civil justice landscape—claims concerning civil rights, wage theft, sexual harassment, and consumer fraud. The effects for social justice, racial justice, gender justice, and economic justice were …

“If Rules They Can Be Called”, Amy J. Griffin

Georgetown Law Faculty Publications and Other Works

Who gets to decide what counts as law? The weight of authority in the U.S. legal system is governed almost entirely by unwritten rules—social norms that establish which sources have weight (and how much weight they have). In 2016, Bryan A. Garner and twelve judges published a treatise essentially codifying unwritten rules related to the operation of precedent. That book, The Law of Judicial Precedent, has itself become a source of authority (on legal authority), cited by judges across jurisdictions. In this essay, I question whether the judicial norms governing the operation of precedent are appropriately presented as definitive blackletter …

The Moral Authority Of Original Meaning, J. Joel Alicea

Scholarly Articles

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Faculty Scholarship

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

The Political Economy Of Wto Exceptions, Timothy Meyer

Faculty Scholarship

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism—essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives—addressing the central environmental, public health, and economic issues of the day—all likely violate World Trade Organization (WTO) rules governing …

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

Gephi Network Files, Folder 2, Part 2: Co-Citation Network Files, Joseph S. Miller

Faculty Datasets

This data subset created and collected by Joseph Miller and digitally preserved here is in support of his forthcoming article "A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach to Assessing Judicial Ideology". From the article's abstract:

"This Article is the first to apply a novel empirical method—citation network analysis—to particular appellate jurists’ separate judicial opinions (e.g., concurrences, dissents) in an effort to provide a more detailed picture of a judge’s ideological preferences. It focuses on the separate opinions of Justices Scalia and Thomas through the end of October Term 2019: they served for a similar number …

Framework For Enhanced Applicability Of The Egyptian Public Procurement Law To International Administrative Construction Contracts, Amr Abu Helw

Theses and Dissertations

Local governments and public authorities conclude contracts for the purpose of acquisition of goods, delivery of services and construction of public facilities like bridges, infrastructures and public buildings. A public contract is an agreement to perform particular tasks financed by government funds to the benefit of the whole community. Private entities and corporations are subject to stricter standards in their dealings with the government than in private transactions. Conversely, the government must deal fairly and equitably with those who it contracted with to achieve successful implementation of the projects. On October 3, 2018, a new Egyptian public procurement law, namely, …

Finding Neverland? Artificial Intelligence And The Jurisprudence Of Legal Certainty, Omar Zaky

Theses and Dissertations

The development of artificial intelligence (AI) models that are capable of predicting the decisions of prominent courts – most notably the European Court of Human Rights and United States Supreme Court – provides us with an opportunity to revisit important jurisprudential debates regarding the quest for legal certainty. Through providing clear distinctions within formalistic jurisprudence, and its, subsequent, realist critique; this thesis seeks to analyze legal decision-making and its relationship with artificial intelligence. I argue that, AI’s deterministic nature and its support for the law being an “entirely self-contained process” does lend some credence to certain jurisprudential arguments. However, this …

Gephi Network Files, Folder 2, Part 1: Citation Network Files, Joseph S. Miller

Faculty Datasets

This data subset created and collected by Joseph Miller and digitally preserved here is in support of his forthcoming article "A Judge Never Writes More Freely: A Separate-Opinions Citation-Network Approach to Assessing Judicial Ideology". From the article's abstract:

"This Article is the first to apply a novel empirical method—citation network analysis—to particular appellate jurists’ separate judicial opinions (e.g., concurrences, dissents) in an effort to provide a more detailed picture of a judge’s ideological preferences. It focuses on the separate opinions of Justices Scalia and Thomas through the end of October Term 2019: they served for a similar number …

One Vote, Two Votes, Three Votes, Four: How Ranked Choice Voting Burdens Voting Rights And More, Brandon Bryer

University of Cincinnati Law Review

No abstract provided.

Trick Or Treat? How A U.S. Patent Over A Method For Processing Sugarcane Wrongly Alarmed The Colombian Panela Industry, Carter Ostrowski

University of Cincinnati Law Review

No abstract provided.

Innocent Until Suspected Guilty, Rebekah Durham

University of Cincinnati Law Review

No abstract provided.

Revitalizing The Ban On Conversion Therapy: An Affirmation Of The Constitutionality Of Conversion Therapy Bans, Logan Kline

University of Cincinnati Law Review

No abstract provided.

Rejecting Word Worship: An Integrative Approach To Judicial Construction Of Insurance Policies, Jeffrey W. Stempel, Erik S. Knutsen

University of Cincinnati Law Review

Insurance coverage litigation is a quest for discerning meaning: Does the insurance policy cover the loss at issue? Construing the insurance policy, courts attempt to give legal effect to what the document purports to command. But what were the intentions and expectations of insurer and insured? Do those intentions even matter? Or is only the written text of the policy relevant to the coverage result? Courts addressing these questions typically frame the interpretative choice as one of strict textualism versus contextual functionalism.

In many, perhaps even most situations, text and context align to create an “easy” case. If a factory …

Political Equality And First Amendment Challenges To Labor Law, Luke Taylor

University of Cincinnati Law Review

This Article conceptualizes a novel basis for defending laws that strengthen labor unions from First Amendment challenge: the argument that these laws are adequately tailored to advancing a compelling state interest in reducing economic inequality’s transmission into political inequality. The Article makes two principal contributions. First, it updates criticisms of the Supreme Court’s campaign finance decisions’ rejection of any compelling interest sounding in political equality. The Article does so by bringing recent constitutional scholarship to bear on that criticism and by explaining how recent improvements in social scientists’ ability to track different economic brackets’ political influence call for the Court …

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey

Arkansas Law Review

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, …