Jurisprudence Commons^™

Modalities, Anti-Modalities, And The Social Psychology Of Persuasive Constitutional Argument, Asma T. Uddin

Catholic University Law Review

Constitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity. The paper examines how these strategies can …

The Final Frontier Of Federal Power: Understanding, Defining, And Enforcing “Necessary And Proper” To Enhance The General Welfare And Limit Federal Power, Thomas Ralph

Catholic University Law Review

This comment explores the long and inconsistent history of the Necessary and Proper Clause and its unique role as both a grant of power to Congress and a limit on the outer reach of the federal government. The federal government is in theory one of limited powers; however, this promise of the Constitution cannot be truly recognized without developing a robust framework for applying the Necessary and Proper Clause as a reliable source of federal power. After establishing the need for a framework, this comment provides five judicial decision rules that can be applied by trial and appellate courts to …

A Matter Of Public Concern: Eliminating The Public Concern Test To Safeguard New York Times Co. V. Sullivan, Alyssa T. Calcerano

Catholic University Law Review

In recent years, Justices Thomas and Gorsuch have expressed a strong interest in reconsidering, and perhaps overruling, the landmark defamation decision, New York Times Co. v. Sullivan. The Court’s defamation jurisprudence has undergone many changes since the landmark case was decided, namely, the Court has since adopted a test known as the “public concern” test. Though adopted by only a plurality of the Court, the “public concern” test has been integrated into the defamation decisions of lower federal courts and state courts. This comment encourages the Court to abandon any push toward the wholesale abandonment of Sullivan and, instead, …

The Validity Of The Restrictions On The Modern Advisory Opinion, Maine Law Review

Maine Law Review

In 1831 the Maine House of Representatives, relying on its constitutional authority to request advisory opinions, sought the counsel of the Justices of the Supreme Judicial Court regarding voting requirements for the election of state officers. Because the House was about to adjourn, it requested that the Justices forward their answers to the Governor for publication. The Justices, without mentioning any constitutional limitation on their power to answer questions propounded by the Governor or the Legislature, complied with this request. One hundred and forty years later, the Senate requested the Justices' advice regarding the reapportionment of the House of Representatives. …

The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review

Maine Law Review

The extent to which the Supreme Court's summary dispositions of appeals are entitled to precedential weight presents a serious problem for lower courts confronted with cases involving issues similar to those previously disposed of in a summarily decided appeal. A recent source of confusion in this area was the Supreme Court's 1975 opinion in Hicks v. Miranda. In Hicks, the lower court held a California statute unconstitutional despite the fact that one year earlier the Supreme Court had summarily dismissed an appeal from a decision upholding the constitutionality of the same statute., The Supreme Court reversed, pointing out that its …

Maine's Reception Of The Common Law, Maine Law Review

Maine Law Review

From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell …

Tort Law Developments, Maine Law Review

Maine Law Review

Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to …

Workmen's Compensation: Compensable Injuries; Awards; Relation Of Court And Commission, Maine Law Review

Maine Law Review

During Justice Dufresne's term as Chief Justice of the Maine Supreme Judicial Court, the court considered over sixty-five cases presenting issues that involved the state Workmen's Compensation Act. These decisions attempted to define both the concept of a compensable injury and the nature of workmen's compensation awards. Examination of the court's treatment of these two major components of the workmen's compensation system reveals the Law Court's attitude toward the system itself, the statutory scheme utilized by the Maine Legislature, and the administrative procedure employed in handling workmen's compensation claims. Consideration of the relationship between the court and the Industrial Accident …

Stare Decisis, Maine Law Review

Maine Law Review

Stare decisis, a doctrine fundamental to common law decisionmaking, requires a court to resolve disputes within the framework provided by the rationales and results of prior cases addressed to similar legal and factual relations. It seeks to reconcile the law's two great warring imperatives, that which requires a rational scheme of consistent authority serving the broad social goals of predictability, uniformity, and finality, with that which demands individual results informed by principle and applied with flexibility and discretion—in a word, justice. On the one hand, by focusing on how legal theory has interacted with fact on correlative earlier occasions the …

Statutory Construction, Maine Law Review

Maine Law Review

The various rules a court may invoke as the time-worn tests of a statute's meaning reveal little of its institutional approach to statutory construction unless considered in the light of particular cases to which they are applied. Mindful that courts generally have failed to develop consistent approaches to statutory construction, the following survey attempts to rough out the contours of Maine doctrine. The reader should note that any critical evaluations derive from stated preferences for particular approaches to problems of statutory construction, and should recall that opinion on these topics varies widely.

Labor Law: Teacher Disputes, Maine Law Review

Maine Law Review

The vast majority of labor law issues presented to the Maine Supreme Judicial Court during the previous seven years were rooted in the confusion surrounding the role of collective bargaining in public school teacher disputes. Indicative of the unsettled nature of this area is the tension between the teacher termination statutes and the Municipal Public Employee Labor Relations Law (hereinafter referred to as MPELRL). Despite the later enactment of MPELRL and its more specific provisions, the court has consistently refused to give it wide application in teacher disputes, choosing instead to rely on the more amorphous statutory provisions defining the …

Standing To Challenge Governmental Action, Maine Law Review

Maine Law Review

Perhaps no inquiry reveals so much of a court's sense of identity as does that into justiciability, a concept employed by courts to limit the availability of judicial redress when a litigant's remedy more properly resides with another governmental body. When the subject-matter the litigant seeks to put in issue itself concerns governmental action or policy, the court must address a sensitive problem: to what extent might its resolution of the controversy intrude upon the policymaking function with which the legislative branch has been charged? Slow either to open themselves to claims they function "anti-democratically” or to override the informed …

The Durfresne Years: A Preliminary Overview, Charles A. Abbott

Maine Law Review

Maine Law Review's timely decision to survey the work of the Supreme Judicial Court will enable our Bench and Bar to review past developments, analyze present positions, and, perhaps, chart with greater facility the future course of Maine's legal development. The retirement of Chief Justice Armand A. Dufresne, Jr., provides an excellent occasion for a look back at the Court's accomplishments.

Administrative Law: Approaches To Delegation, Maine Law Review

Maine Law Review

As do most state courts, the Maine Supreme Judicial Court purports to require that legislative delegations of power to administrative agencies be accompanied by legislatively articulated "primary standards" sufficient to prohibit arbitrary exercise of administrative discretion. The requirement is rooted in the non-delegation doctrine, once the principal stumbling-block to the creation of an effective administrative arm of government. Originally a liberalization of the non-delegation rule, the primary standards test can become an unwarranted restraint on legislative discretion, particularly when invoked to nullify delegations necessarily broad in scope. Often, the very reason behind a legislature's choice of administrative means to effectuate …

Predicting What The Law Court Will Do In Fact, Harry P. Glassman

Maine Law Review

Over eighty years ago Oliver Wendell Holmes announced what became the manifesto of the legal realists when he stated: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Legal philosophers and professors of jurisprudence may justifiably quarrel with Holmes' definition of law, but that definition continues to be useful to the practicing attorney engaged in the everyday business of counseling clients and advising them concerning the legality of anticipated activities. It is useful also to the trial court judge, bound by the decisions of an appellate court, who, …

The Problem Of Biased Precedents, Ronen Avraham, Issachar Rosen-Zvi

Cardozo Law Review

This Article addresses the problem ofbiased precedents, wherein sophisticated repeat players, often corporate and state entities armed with superior resources and a vested interest in shaping the law, manipulate legal proceedings to systematically establish self-advantageous precedents. Specifically, by strategically choosing to litigate cases they anticipate will lead to favorable precedents and settling those expected to produce unfavorable outcomes, these players systematically bias the law over time to their advantage, at the expense of one-shot parties and society at large. The problem of biased precedents challenges the commonly held view about the efficiency and fairness of the legal system and raises …

Historical Firearm Licensing And Permitting Laws, Robert J. Spitzer

Dickinson Law Review (2017-Present)

No abstract provided.

Rituals Of Reluctance: How Loper Bright Further Obscures Civil Rights’ Place In The Modern Administrative State, Cameron K. Obioha

Mercer Law Review

Loper Bright Enterprises v. Raimondo (Loper Bright)marks the end of the Chevron doctrine and the abandonment of nearly forty years of precedent. Despite providing extensive reasoning regarding why eliminating an anchor of administrative law is the culmination of long‑awaited progress, no member of the Supreme Court of the United States elected to opine on a crucial implication of this historic decision. The court did not address how, with reinstated dominion over “every open issue” in regulatory law, it will reconcile the ever‑widening chasm between civil rights policy and the modern administrative state when such challenges inevitably arise.

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

The Wrongly Read Right: Insurrection And The Second Amendment Right To Bear Arms, Aman Mcleod, Jacob M. Jones

Dickinson Law Review (2017-Present)

Several judges and scholars have interpreted the Second Amendment as creating a right to bear arms to facilitate armed resistance against the government whenever it threatens to impose tyranny. These arguments have been made in books, scholarly articles, and court decisions. Many of the proponents of the pro-armed insurrection interpretation of the Second Amendment root this point of view in the history of the right to bear arms in the Anglo-American legal tradition. This Article argues that the Second Amendment does not create a right to bear arms to resist government authority because such a right is inconsistent with several …