Jurisprudence Commons^™

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer

Seattle University Law Review

This Article focuses on the tension between the late-nineteenth century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” …

The Evian Agreements On Algeria And The Lancaster Agreements On Zimbabwe: A Comparative Analysis, O. N. Musamirapamwe

Georgia Journal of International & Comparative Law

No abstract provided.

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

Flexible Predictability: Stare Decisis In Ohio, Richard Garner

Akron Law Review

This Article explores the need for a doctrine permitting, but limiting, the overruling of prior precedent; Ohio’s adoption of such a rule; and whether the current standard will endure. To fully appreciate the need for a rule that permits but also limits the overruling of prior Supreme Court precedent, it is helpful to understand the historical context in which the Galatis rule developed. Section II of this Article discusses the political and ideological changes that swept the Ohio judiciary in the early 1990s with the election of two new Justices to the Ohio Supreme Court. The new Justices quickly set …

The Concept Of Fundamental Rights In European Economic Community Law, Laurent Marcoux Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Impairment Of The Operation Of The Warsaw Convention By Recent Legislative And Judicial Action, Alan N. Sutin

Georgia Journal of International & Comparative Law

No abstract provided.

The Property Rights Of Spouses Cohabiting Without Marriage In Israel - A Comparative Commentary, Menashe Shava

Georgia Journal of International & Comparative Law

No abstract provided.

Toward More Equal Access To Justice: The Tennessee Experience, Douglas A. Blaze, R. Brad Morgan

Scholarly Works

No abstract provided.

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

Marquette Law Review

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Verbal Speech Versus Visual Art: Evidence Of Unequal First Amendment Protection In Right Of Publicity Jurisprudence, Daniel Forman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally …

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

Faculty Scholarship

The Supreme Court's unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito's opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.

This article for the Hastings Law Journal's symposium on …

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Journal Articles

No abstract provided.

From The Shoals Of Ras Kaboudia To The Shores Of Tripoli: The Tunisia/Libya Continental Shelf Boundary Delimitation, Donna R. Christie

Georgia Journal of International & Comparative Law

No abstract provided.

When Rules Are Made To Be Broken, Zev J. Eigen, David S. Sherwyn, Nicholas F. Menillo

Northwestern University Law Review

When do judges follow rules expected to produce unjust results, and when do they intentionally misapply such rules to avoid injustice? Judicial rule-breaking is commonly observed when national dignity and morality are at stake, such as abolitionist judges charged with applying federal fugitive slave laws, or when lives hang in the balance, such as applications of criminal sentencing rules. Much less is understood about judicial rule-breaking in quotidian civil litigation, in spite of the sizeable impact on litigants and potential litigants, as well as the frequency with which judges face such decisions. This Article is the first to theoretically assess …

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

University of Richmond Law Review

No abstract provided.

Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand

Michigan Law Review

The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of …