Jurisprudence Commons^™

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

The Other Preamble: Civic Constitutionalism And The Preamble To The Bill Of Rights, John E. Finn

Concordia Law Review

This Article considers the civic constitutionalist nature of the Preamble to the Bill of Rights. Civic constitutionalism is a mode of reading constitutional texts that considers power in political, as opposed to legal, terms. Thus, the civic constitution gives citizens, not judges, the primary duty for ensuring a constitutionally compliant society. This Article also presents the underlying reasons, effects, and costs of the obscurity of the civic constitution and, more specifically, the Preamble to the Bill of Rights.

Willful Blindness Or Deliberate Indifference: The United States' Abdication Of Legal Responsibility To Refugees, Abed A. Ayoub, Yolanda C. Rondon

Barry Law Review

No abstract provided.

Pepperdine University School Of Law Legal Summaries, Jee (Jane) Seo

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

On Eccentric Constitutional Jurisprudence, William D. Valente

The Catholic Lawyer

No abstract provided.

Narratives Of Self-Government In Making The Case, Benjamin L. Berger

The Journal of Appellate Practice and Process

No abstract provided.

Random If Not Rare: The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

South Carolina Law Review

No abstract provided.

Eliminating Circuit-Split Disparities In Federal Sentencing Under The Post-Booker Guidelines, Elliot Edwards

Indiana Law Journal

This Note will explore the rarely discussed consequences that result when courts of appeals freely interpret the Sentencing Guidelines. This Note will not address appellate review of sentences in general, nor will it discuss disparities caused by trial courts. Instead, the discussion below will address a very specific situation, namely when a court of appeals vacates a sentence because, in its estimation, the trial court misapplied the Guidelines. Part I will relate the history of the recent sentencing re-form movement in America, noting particularly which bodies have the authority to decide sentencing policy. Part II will then analyze the interpretive …

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Articles

Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

Benchslaps, Joseph P. Mastrosimone

Utah Law Review

The practice of judges issuing so-called benchslaps is growing both in popularity and concern. Such published decisions and orders seek to publicly shame lawyers for their alleged unethical or unprofessional lawyering. Legal blogs have picked up on this trend, celebrating and elevating benchslaps to become a part of legal popular culture. However, the practice of using embarrassing and belittling published decisions to punish or to deter unethical or professional conduct raises serious concerns that the issuing judge is violating his or her own ethical duties.

This Article criticizes the practice and concludes that it must end based on three arguments: …

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Obligations Versus Rights: Substantive Difference Between Wto And International Investment Law, Chios Carmody

Law Publications

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a …

A Call For A Genuinely American Jurisprudence, John Underwood Lewis

The Catholic Lawyer

No abstract provided.

The Private Search Doctrine And The Evolution Of Fourth Amendment Jurisprudence In The Face Of New Technology: A Broad Or Narrow Exception?, Adam A. Bereston

Catholic University Law Review

The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled to …

Interview With Christoph Möllers: On The Possibilities And Afacticity Of Norms, Christoph Moellers

Notre Dame Journal of International & Comparative Law

Christoph Möllers, Professor of Public Law and Jurisprudence at the Humboldt Universität zu Berlin, discussed his recent book, The Possibility of Norms, and related concepts of jurisprudence on June 16, 2016 with Alex Holznienkemper, Ph.D. of Baylor University. The following is an edited transcript of their interview as translated by Dr. Holznienkemper.

The Crushing Of A Dream: Daca, Dapa And The Politics Of Immigration Law Under President Obama, Robert H. Wood

Barry Law Review

No abstract provided.

Nationwide Injunctions, Rule 23(B)(2), And The Remedial Powers Of The Lower Courts, Michael T. Morley

Scholarly Publications

No abstract provided.

The Exceptional Role Of Courts In The Constitutional Order, N.W. Barber, Adrian Vermeule

Notre Dame Law Review

This Article looks at a rare part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually …

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …