Jurisprudence Commons^™

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 …

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, …

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 …

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 …

Living To Die: Life Imprisonment Without Remission Or Parole In India, Preeti Pratishruti Dash, Rushil Batra

Articles

This article critically examines the Supreme Court of India’s use of life imprisonment without the possibility of remission or parole (LWORP) as a sentencing alternative to the death penalty. While the Constitution Bench in V Sriharan v Union of India (2015) upheld the constitutionality of such sentences, it did not articulate principled standards governing their imposition. This article argues that the absence of such standards has produced a vacuum in LWORP sentencing. To substantiate this claim, we analyse fifty-three Supreme Court judgments delivered between 2016 and 2024 in which death sentences were commuted to LWORP. The analysis reveals widespread inconsistency …

Living To Die: Life Imprisonment Without Remission Or Parole In India, Preeti Pratishruti Dash, Rushil Batra

Articles

This article critically examines the Supreme Court of India’s use of life imprisonment without the possibility of remission or parole (LWORP) as a sentencing alternative to the death penalty. While the Constitution Bench in V Sriharan vs Union of India (2015) upheld the constitutionality of such sentences, it did not articulate principled standards governing their imposition. This article argues that the absence of such standards has produced a vacuum in LWORP sentencing. To substantiate this claim, we analyse fifty-three Supreme Court judgments delivered between 2016 and 2024 in which death sentences were commuted to LWORP. The analysis reveals widespread inconsistency …

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 …

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. …

Rethinking Objectivity: The Problem Of Pretext In The Fourth Amendment, Monu S. Bedi

Indiana Law Journal

Pretextual encounters continue to erode the legitimacy of the Supreme Court’s Fourth Amendment jurisprudence. Simply put, a police officer can act on personal bias or animus as long as the search or seizure is deemed “objectively reasonable.” Numerous scholars (e.g., Bennett Capers, Gabriel Chin, and David Harris) have critiqued this objective standard, contending it perpetuates discriminatory practices, particularly against communities of color. The late Justice Ruth Bader Ginsburg herself suggested that the Court might need to reconsider the legal precedent she helped establish. More recently, Orin Kerr has also argued that the Court’s reliance on objective determinations is inconsistent with …

The Addison C. Harris Lecture: Intellectual Diversity Mandates And The Freedom To Teach, Keith E. Whittington

Indiana Law Journal

This Essay provides the first examination of the Indiana Senate Bill 202, which was adopted into law in the spring of 2024. The new law imposes an “intellectual diversity” mandate on public university classroom teaching in the state. The law is novel in its approach but is part of a larger movement to intercede in what is taught in university classrooms. The intellectual diversity mandate raises difficult and unexamined conceptual, normative, and practical problems that will now demand attention from university officials in Indiana and that might soon confront university administrators in other states across the country if the Indiana …

Encampments And Property Law, Terry Skolnik

Indiana Law Journal

Although encampments have become increasingly common, they remain under-theorized, especially in the field of property law. Homeless encampments are ubiquitous in many cities. Social movements—such as Occupy Wall Street, the Freedom Convoy Movement, and college campus protests related to the war in Gaza—involve encampments that aim to catalyze social change. Yet surprisingly, legal scholars have devoted relatively little attention to encampments. This is a major oversight. Encampments matter for a range of moral, philosophical, and legal reasons that are hiding in plain sight and generate important theoretical and practical consequences that require deeper scrutiny.

This Article aims to fill this …

Representation In Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Indiana Law Journal

Millions of immigrants in the United States are facing threats of mass deportation under the second Trump Administration. At the same time, the Administration has sought to end federal programs aimed at providing basic information and guidance to immigrants in removal proceedings. In addition, large numbers of immigration judges have been fired from immigration courts that already face massive backlogs. Amidst these upheavals, deportation defense lawyers have come to occupy a more central role than ever in ensuring fairness and due process in immigration courts. Are certain groups of immigrants more likely to obtain legal representation than others? Among those …

Is Tax “Law”?, Luís C. Calderón Gómez

Articles

Although taxation remains a hotly contested issue in debates by both politicians and political theorists—over the optimal size of government, distributive (and sometimes corrective) justice, or even the legitimacy of current private property arrangements—taxation has been largely ignored by legal theorists, to the detriment of both tax law and legal theory.  This Article argues that tax law, driven by its battle against tax evasion, is in deep conflict with widely accepted conceptions of “legality”—that is, the qualities that make a rule distinctively and normatively “law.”  This matters because legality is a key buttress in jurisprudential and political theory accounts that …