Jurisprudence Commons^™

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Additional Materials For Judicial Uses Of Images: Vision In Decision, Peter Goodrich

Online Publications

These images are taken from published judicial decisions that are publicly available. The instances used are to analyze the manner in which judges see the subject matter of disputes and to elaborate a theory of the vision underlying decisions.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Northwestern University Law Review

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

Free, Prior Informed Consent And Extractive Industry: Indigenous Action Is The Past, Present, And Future Of Global Environmental Justice, Paige Bellamy

Environmental and Earth Law Journal (EELJ)

Free, Prior Informed Consent ("FPIC") from the UN Declaration on the Rights of Indigenous Peoples has been central to global Indigenous action against extractive industries’ harmful practices. Yet, it is often not fully recognized as a sovereign right, which hinders Indigenous peoples’ ability to use it to its full potential. Historically, FPIC has been deemed a consultation right, not a right to “veto” industry action on Indigenous land. Countries that have interpreted FPIC as a mere consultation right have allowed further exploitation of Indigenous peoples, usually leading to environmental and humanitarian disasters. However, when courts have respected the right to …

Soaps And Shampoos: Proposals To Reform Regulation In The United States Personal Care Market To Decrease Deforestation From Palm Oil Imports, Kelsey Weston

Environmental and Earth Law Journal (EELJ)

Palm oil is the world's most highly sought-after vegetable oil due to its multifaceted uses and cheap cost of production. However, producing this versatile oil comes at a high cost to one of the largest biodiversity on the planet. Over the last two centuries, Indonesia and Malaysia have become the main producers and exporters of palm oil but they are also home to the largest number of mammal species in the world that have seen a staggering decline in populations. Furthermore, palm oil production has caused excessive release of greenhouse gases, increased disruption of forestland, and economic poverty for smallholders …

Nuclear Powered International Commercial Shipping: A Note On The Greenest Solution And The Challenges Of International Regulation, Rebecca Mcreynolds

Environmental and Earth Law Journal (EELJ)

To meet the environmental demands imposed by the International Maritime Organization, the commercial shipping industry’s use of predominantly marine diesel fuel will need to change drastically. Current answers to these environmental concerns include the use of biofuels, battery packs, and liquified natural gas, but these are short-term solutions that will not fully meet environmental demands in the long run. Nuclear propulsion, however, is a tried-and-true resolution. The use of nuclear energy results in virtually no environmental impact and has successfully been used by the US Navy for the past 75 years. Unfortunately, the commercial use of nuclear propulsion is stalled …

Reversing Quiet Destruction: Florida's Attempt To Regulate Pfas Known As Forever Chemicals, A. Colleen Donald

Environmental and Earth Law Journal (EELJ)

Introduced by manufacturing companies in the 1940s, Per-and polyfluorinated substances (“PFAS”) which consist of a group of over 6,000 chemicals, have insidiously made their way into the bloodstream of humans and into the environment. These nearly indestructible, “forever chemicals” that were once thought to be safe for use in firefighting foams, cosmetics, food packaging, non-stick cookware, and water-resistant clothing, are now found to be toxic. PFAS have been found in animals, aquatic life, and natural resources, and are associated with illnesses in humans: PFAS have been linked to various cancers, reproductive issues in women, and birth defects in children. As …

Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper

Amicus Briefs

Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …

Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers

Amicus Briefs

The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …

The Role Of U.S. Government Regulatioms, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.

Narrowing The Scope Of Public Order Payment Under Uae Private International Law: A Critical Study, Mariam Ahmed Alsandal Dr.

UAEU Law Journal

Private international relations are the legal relations of a foreign component, for which the legislator has permitted the application of foreign law to their disputes, which is approved by the Emirati legislator in the Federal Civil Transactions Law No. 5 of 1985 and its amendments, through a set of legal rules known as the rules of attribution contained in texts 10 to 28 of this law. The Emirati legislator also approved the application of the foreign law in the Federal Personal Status Law No. 28 of 2005 and its amendments, stipulating that the litigants or one of them must adhere …

The Impact Of Assigning Legislative Jurisdiction To The Competent Court In Disputes Concerning Inheritance And Estate Related Lawsuits, Bashayer Alghanim Dr.

UAEU Law Journal

disputes and estate related lawsuits having a foreign element. In this respect, the jurisdiction This research determines the court jurisdiction concerning inheritance disputes and estate related lawsuits having a foreign element. In this respect, the jurisdiction connecting factors adopted by the legislator are diverse like personal, regional or qualitative. However, we have dealt in detail with the qualitative jurisdiction connecting factor. As this is the first step, beyond doubt, that affects the determination of choice of law, does choice of law affect jurisdiction under estate related inheritance cases having a foreign element? Accordingly, we have studied the influence contained in …

African Courts And International Human Rights Law, John Mukum Mbaku

Brooklyn Journal of International Law

The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and since then, the international community, with the help of the United Nations, has adopted other international human rights instruments designed to recognize and protect human rights. Since international human rights instruments do not automatically confer rights that are justiciable in domestic courts, each African country must domesticate these instruments in order to create rights that are justiciable in its domestic courts. Given the fact that many African countries have not yet domesticated the core international human rights instruments, international human rights law’s ability to positively impact …

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

Vested Patents And Equal Justice, Adam Macleod

Catholic University Law Review

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law’s interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure justice …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.