Jurisprudence Commons^™

Chicago, Arbitrary Detention And Torture: An Examination Of Human Rights Violations And Legal Responses Under The Second Trump Administration, Gianna Keuer

Bates College Undergraduate Law Review

This paper uses a human rights-based analysis to explore the legal implications of the second Trump administration’s deportation policies, using frameworks enacted by international legal organizations and state-level bodies. Drawing upon the Convention Against Torture, the International Covenant on Civil and Political Rights, and established state policies, the paper identifies important jus cogens norms against arbitrary detention and torture. With Chicago serving as a case study, the paper explores different avenues that have been employed to counter violations of prohibitions of arbitrary detention and torture, ultimately concluding that state-level policy responses and impact litigation cases serve as a more efficacious …

The Paradox Of Equal Protection: Anti-Subordination Rhetoric In Service Of Anti-Classification Ends, Aanya Ghosh

Bates College Undergraduate Law Review

This article examines the evolution of Equal Protection jurisprudence through the competing lenses of anti-classification and anti-subordination. Anti-classification holds that the Constitution prohibits governmental use of racial categories regardless of purpose; anti-subordination holds that the Equal Protection Clause targets the perpetuation of racial hierarchy rather than the mere use of racial categories. Beginning with the foundational ambiguity of Brown v. Board of Education (1954) and tracing the doctrinal trajectory through Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District No. 1 (2007), and Students for Fair Admissions …

عملة إيفاء الديون مع ملاحظات حول تحديد سعر صرف العملة: دراسة مقارنة, أنطوان طعمة

Proche-Orient, Études juridiques

This study tries to clear up the ambiguity that deals with the interpretation of legal articles related to repayment. It includes an attempt to interpret the text of article 301 of the Law of Obligations and Contracts. It also deals with the text of the second paragraph of that article, which mentions the phrase “normal time” during which the parties have the right to stipulate the payment in a foreign currency or metal. The study also deals with an explanation of the concepts of compulsory circulation and legal circulation of currency, and the impact of these concepts on the interpretation …

Constitutional Theory At A Catholic University, J. Joel Alicea

Catholic University Law Review

I argue that the study of constitutional theory is ideally suited to benefit from the intellectual climate of a Catholic university. To make that argument, I address three questions. First, in what ways does constitutional theory benefit from the intellectual disposition of a Catholic university? Second, what might be the potential drawbacks or risks involved in studying constitutional theory at a Catholic university? And finally, how can one gain the benefits of being a constitutional theorist at a Catholic university while avoiding any potential risks that attend that setting?

Aquinas, Wilson, And Continuity On Crime And Punishment, Brian M. Murray

Catholic University Law Review

This Article compares the legal thought of James Wilson, a leading jurisprudential figure during the American Founding, and Thomas Aquinas, perhaps the most well-known medieval philosopher, on crime and punishment. It argues their theories are closer than the historical gulf between them suggests would be the case. Both limit the definition of crime to morally culpable acts involving public harm. Each considers redressing the public disorder crime causes as the primary justification for punishment. While Wilson defers to the English common law to emphasize protecting certain natural rights and to prevent crime, Aquinas points to his understanding of natural law …

Commonsense And Convoluted: Revisiting Scott V. Harris And Its Effect On Summary Judgment, Zachary P. Novak

Catholic University Law Review

The traditional summary judgment standard across state and federal courts has long been that facts are viewed in the light most favorable to the nonmovant; this has developed as both a baseline measure to test whether the claims are even fit for a trial, but also as a measure of fairness – it is the movant who wants to dispose of the case before trial, so this standard gives the nonmovant a more level playing field. However, the Supreme Court decision of Scott v. Harris carved out a unique exception to this standard: when there is video evidence that so …

Looking For Loopholes: Are Suicide Notes Really Admissible As Dying Declarations?, Marc D. Ginsberg, Hugh M. Mundy

Cleveland State Law Review

The “classic” dying declaration under Federal Rule of Evidence 804(b)(2) is made by a person near death from fatal wounds or illness who makes a statement to a third party about who inflicted the wounds or caused the illness. The rule is based on the belief that persons making such statements are unlikely to lie as the sense of impending death removes “all temptation to falsehood.” Thus, in theory, the dying declaration bears an imprimatur of trustworthiness justifying its admission as a hearsay exception.

Still, the exception for dying declarations has been described as “the most mystical in its theory …

Or Else: Statutes Without Sanctions And The Doctrine Of Meaningful Interpretation, Christian Davis

Washington and Lee Law Review Online

Mankind has been fashioning laws for millennia. And while the form and substance of laws vary widely across times and places, all laws are unified by a fundamental reality that transcends the particular legal and political institutions of the day. To put it simply: laws only work if someone is prepared to enforce them.

As arbiters of the American legal system, state and federal judges are aware that—in order for a law to have the conduct-influencing effect it was designed to have—it must be supported by some version of an “or else” clause, a punishment or penalty sufficient to dissuade …

In Defense Of The Ten Commandments In Public Spaces: An Analysis Based On The Supreme Court’S New Judicial Standard, Songfeng Li

Arkansas Law Review

On June 19, 2024, Louisiana Governor Jeff Landry signed legislation mandating the display of the Ten Commandments in all public K-12 schools and colleges in the state. On June 21, 2024, Texas Lieutenant Governor Dan Patrick announced his intention to introduce a similar bill in the next legislative session that would require the display of the Ten Commandments in schools. Immediately after the Louisiana law’s enactment, a group of local parents with the help of multiple organizations filed a federal lawsuit seeking to block its implementation. As of today, the district court and appellate court have issued differing rulings. The …

A Tale Of Two Credits: The Post-Nestlé Alien Tort Statute And Carbon Credit Externalities, Stephanie Mao

Northwestern University Law Review

As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of “phantom” carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms “colonial” carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus …

Disproportionate Influence: Rethinking Control In American Corporate Governance, Dhruv Aggarwal, Ofer Eldar

Northwestern University Law Review

Corporate law has undergone a gradual transformation. Founding chief executive officers (“founder-CEOs”) and activist hedge funds increasingly dominate leading American corporations despite owning well short of a majority of shares. Founder-CEOs, through personal brands or dual-class voting structures, control firms despite having minority stakes; activist hedge funds, with single-digit holdings, press for major governance changes. We argue that these two types of shareholders, often treated as opposites, both dominate corporations through disproportionate influence rather than majority ownership. We describe these investors who dictate corporate policy through disproportionate influence as high-influence shareholders.

Delaware’s doctrinal response to high-influence shareholders has been inconsistent, …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Northwestern University Law Review

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

Beyond Capitalist Law: A Commentary On Katharina Pistor, The Law Of Capitalism And How To Transform It, Martijn W. Hesselink

University of Miami Law Review

In her powerful new book, Katharina Pistor, grounded in the argument that capitalism is a legal regime, outlines a pathway beyond capitalist law: the transformation of private law in accordance with constitutional principles and the human capabilities approach. This short essay questions whether existing constitutions and the capabilities approach have the normative resources to overcome capitalism. Given existing corporate power entrenched in private rights, the paper also wonders who could be effective and legitimate agents of change able to transform private law into post-capitalist law. It suggests that nothing less than a revolution is needed to overcome capitalist private law …

Contractualizing Corporate Governance, Jonathan C. Lipson, Eli Alexander Evans

University of Miami Law Review

The relationship between fiduciary duty and contract has never been clear. The law of fiduciaries has long constrained discretionary control of other people’s property, notably in corporate governance, where directors owe a corporation duties of care and loyalty. Yet, contract has also had the capacity to modify these duties in important—but uncertain—ways because neither body of law contains a meta-rule specifying which would “trump” in the event of conflict. Uncertainty was rarely problematic, however, because directors lacked the power to fully contract away their control of the corporation or their concomitant fiduciary duties.

This has changed in the past thirty …

Lawless Antitrust, John M. Newman

Fordham Law Review

No abstract provided.

Why Capitalism Needs Democracy And Democracy Needs Capitalism, Luigi Zingales

Fordham Law Review

No abstract provided.

Protecting Cultural Personality, J. Janewa Osei-Tutu

Articles

When companies use cultural symbols or cultural heritage from an indigenous or local community without their knowledge or permission, it can lead to claims of cultural appropriation, particularly in the fashion industry. Yet, the law provides little to no remedy. Trademarks and geographical indications can be used to protect collective cultural identities. However, these intellectual property laws are not helpful if the affected cultural group has not commercialized its identity by offering goods or services to the public. This Article contributes to the literature by theorizing a dignitary-based intellectual property model for protecting cultural identities. It draws on the U.S. …

How Many Supreme Court Justices Can Stand On The Point Of A Needle? Originalist Scholarship, Political Neutrality, And Other Constitutional Nonsense, Stephen M. Feldman

Washington and Lee Journal of Civil Rights and Social Justice

In the 1935 article, "Transcendental Nonsense and the Functional Approach," Felix Cohen compared formalist legal reasoning, as practiced by traditional legal scholars and Lochner-era Supreme Court justices, to the philosophical musings of scholastic theologians. Unconnected to empirical reality, formalist legal reasoning was as nonsensical as a disquisition on “‘[h]ow many angels can stand on the point of a needle?’” Nowadays, originalist scholars are similarly engaged in nonsense. These scholars defend, refine, and practice originalist methods of constitutional interpretation as if the Supreme Court justices truly decided cases in accordance with the theory. Regardless, the justices—even the avowed originalists—do not consistently …

The Hidden Power Of Citizenship: Political Identity In The Twilight Zone Of Equal Protection, Charles J. Anderson

Indiana Law Journal

More than half a century ago, in the landmark case of Graham v. Richardson, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits state-level blanket exclusions of noncitizens. That case ushered in a new rule: State classifications based on alienage are “inherently suspect” and subject to strict scrutiny. But Graham’s rule has a major exception. Just a few years after Graham was decided, the Court upheld several state laws excluding noncitizens from working as police officers, public school teachers, and probation officers. So was created what would later be termed “political function” doctrine. …