Reasons For Interpretation,
2024
Notre Dame Law School
Reasons For Interpretation, Francisco J. Urbina
Journal Articles
What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional, and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. This is the "normative choice thesis." This Article formulates the normative choice thesis and offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reason cannot justify interpretive choice. In doing this, this Article also …
"Bricolage" As Comparative Research Method For Critical Legislative Innovation,
2024
Université Laval
"Bricolage" As Comparative Research Method For Critical Legislative Innovation, Marie-Claire Belleau
FIU Law Review
Comparative law incentivize imagination to create new solutions to social problems intrinsically linked to different parts of the world. It consists in the analysis of multiple legal solutions revealed by research. Meanwhile, the understanding of the documentation put forward is influenced by the social, cultural, linguistic, political, and economic context where it evolved in the first place. Consequently, the interpretation of those elements leads to varying results. In response to this reality, we offer a modest comparative methodology rooted in creativity inspired by the concept of “bricolage” for the purpose of legislative innovations. In light of some descriptive examples pertaining …
The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality.,
2024
West Virginiia University
The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality., Scott Kevin Turner
Graduate Theses, Dissertations, and Problem Reports (ETD)
The study sought to explore the impact of the New York State “Bail Reform Act of 2019,” in rurality. It examined some of the legislative goals of the law, the claim that it caused crime, and offender experiences in rurality. Secondary data was used to map the rural crime landscape and primary data was collected from offenders during face to face interviews. The study was framed using deterrence and opportunity approaches and situated within the broader field environments; legislative, courtroom, and community. The research failed to find support for the claim that bail reform caused crime. Instead, it revealed that …
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish,
2024
Touro University Jacob D. Fuchsberg Law Center
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner
Touro Law Review
This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …
Their Futures, So Full Of Dread: How Barefoot's Contamination Of The Death Penalty Trial Process Continues,
2024
New York Law School
Their Futures, So Full Of Dread: How Barefoot's Contamination Of The Death Penalty Trial Process Continues, Michael L. Perlin, Talia Roitberg Harmon, Maren Geiger, Moana Houde-Camirand
Articles & Chapters
Forty years ago, in its most roundly-criticized criminal procedure decision in modern history, the Supreme Court, in Barefoot v. Estelle (463 U.S. 880 (1983)), a decision premised on testimony by the responses to a hypothetical of a witness who had never directly evaluated the defendant, ruled that such testimony as to future dangerousness – testimony that had concluded there was a “100% chance” the defendant would commit more crimes if released into society -- was permissible. Over a stinging dissent by Justice Blackmun, the Supreme Court had ruled in Barefoot that it was not constitutional error for psychiatrists to testify …
Judicial Independence: An Important Yet Fragile Concept Needed For The Democracy Of The United States,
2024
Arcadia University
Judicial Independence: An Important Yet Fragile Concept Needed For The Democracy Of The United States, Michael Johnson Jr
Capstone Showcase
My thesis explores the processes by which jurists are appointed to the bench to various State Supreme Courts through several selection methods. I delve deep into the extensive and intricate history surrounding judicial independence as an institutional concept, which has caused signs of concern for many legal and institutional scholars. My research aims to address the question: To what extent do the methods and mechanisms intended to safeguard judicial independence effectively fulfill their purpose? To answer this question, I use a pattern matching method to analyze a selection of six summary judgment cases–chosen randomly–from each state. Three cases where the …
Interpretive Divergence In The New York Court Of Appeals,
2024
Fordham University School of Law
Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib
Faculty Scholarship
This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.
The Consumer’S Choice To Boycott,
2024
Seattle University School of Law
The Consumer’S Choice To Boycott, Agnes Bresee
Seattle University Law Review
In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …
Arbitral Reliance On "Precedent",
2024
University of Louisville Brandeis School of Law
Arbitral Reliance On "Precedent", Ariana R. Levinson
Cardozo Journal of Conflict Resolution
We conclude that "precedent" may not be the most appropriate term for arbitrators' reliance on other awards. While the term "precedent" might be used loosely in the sense that any past event is a precedent for any future event, the doctrines of stare decisis, collateral estoppel, and res judicata do not apply in labor arbitration. Only if a contract explicitly states or is interpreted by arbitrators to require past awards between the same parties to bind them into the future until a change is negotiated to the contract will these doctrines be utilized by arbitrators. Much more often, including in …
A Different Approach To Agency Theory And Implications For Esg,
2024
Seattle University School of Law
A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun
Seattle University Law Review
In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.
Overseeing The Administrative State,
2024
Seattle University School of Law
Overseeing The Administrative State, Jill E. Fisch
Seattle University Law Review
In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …
The Sec, The Supreme Court, And The Administrative State,
2024
Seattle University School of Law
The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney
Seattle University Law Review
Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.
A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States,
2024
Seattle University School of Law
A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly
Seattle University Law Review
After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …
The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship,
2024
University of Richmond School of Law
The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship, Thomas G. Donnelly
Law Faculty Publications
Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one …
The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence,
2024
Claremont Colleges
The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence, Richa Parikh
CMC Senior Theses
The “Reasonable Woman Standard” was first used in the 1991 case of Ellison v. Brady and has been central in shaping legal responses to sexual harassment. However, as societal norms and understandings of gender dynamics continue to evolve, as we experienced with the #MeToo movement, this “Reasonable Woman” often fails to grow with the times. I argue that this “Reasonable Woman” fails to encapsulate the complexities of sexual harassment experiences across different genders and cultural backgrounds. In this thesis, I deconstruct the historical development of the “Reasonable Woman Standard,” analyzing its roots in the “Reasonable Person Standard.” Through a combination …
The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union,
2024
Claremont Colleges
The State Of Our Republic: State Constitutions’ Role In Creating A More Perfect Union, Caroline Bullock
CMC Senior Theses
This thesis situates state constitutionalism in the modern context of federal constitutional paralysis. By tracing patterns of state constitutional development, we find that states were always the fundamental setting of democracy, and there has always been critical action happening at state legislatures, in state courts, and through state constitutional change. State constitutions provide an active means to achieve progress and protect rights not federally enshrined (and thus, endangered by the political process). The use of state constitutions to prescribe ways of life, protect individual and specialized rights, and to limit local governments has always occurred, but with the current federal …
I Hope The Final Judgment’S Fair: Alternative Jurisprudences, Legal Decision-Making, And Justice,
2024
New York Law School
I Hope The Final Judgment’S Fair: Alternative Jurisprudences, Legal Decision-Making, And Justice, Michael L. Perlin
Articles & Chapters
At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows that many (perhaps most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced. This chapter explains why this goal of fairness, in the context of these cases, can never be met absent a consideration of …
Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?,
2024
Loyola University Chicago
Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez
Seattle University Law Review
The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …
Becoming A Doctrine,
2024
William & Mary Law School
Becoming A Doctrine, Allison Orr Larsen
Faculty Publications
On the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does …
Table Of Contents,
2024
Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents
