Jurisprudence Commons^™

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

Preemptive Dicta: The Problem Created By Judicial Efficiency, Judith M. Stinson

Loyola of Los Angeles Law Review

Judges regularly espouse dicta. Traditional obiter dicta, remarks that are clearly asides and not about issues considered in the case, can be easily ignored by subsequent courts. But one particular form of dicta is especially problematic because it is more difficult to ignore. Judicial efficiency dicta are statements in judicial opinions about issues involved in the case and likely to present themselves again, but not necessary for the outcome of the case. While those statements are often about issues actually considered and may contribute to judicial efficiency by saving courts time when reconsidering issues already litigated, just like obiter dicta, …

The Utilization Of The Rule Of Law For Economic Development In Developing States: The Case Of Egypt From Nasser To Mubarak, Mohamed M. Ahmed

Theses and Dissertations

Neoliberal development proponents argue that the rule of law is essential for achieving economic development. It demands adjusting legislative and legal institutional practices to enforce and protect market operations, and the minimizing of state intervention. The IFIs and the developed states adopted this development approach in dealing with developing states through conditional-based lending. Through attaching structural regulative adjustments and the reformation of juristic institutions as preconditions to their fiscal assistance, the IFIs, influenced by the developed states, were able to impose a system of legal economic governance over the developing economies. Across the different development stages, developing states who did …

Determination Of Descent And Inheritance By The Heir Through Genetics In Islamic Jurisprudence With Reference To The Uae Personal Status Law, Aref Hassouneh

UAEU Law Journal

A man may marry a woman by a verbal contract and then abandon his wife and child back to his country to remarry and create a new family; forget his first family. A man may marry a second wife secretly from his first wife and children, so that no problems will arise, and the man may have a son of adultery recognized in the disease of death in front of his legal children, and then die. In such cases, the heir may appear unknown, then some of the heirs recognize him and others deny him. What is the ruling in …

Authenticity Of The Jurisprudential Rule: A Comparative Study, Ayman Abdel Hamid Al-Badarin

UAEU Law Journal

This research is about the accompany of intention principles in Islamic Sharia according to jurisprudence and basis. This will be through the source of prophetic rule that actions are ruled by what we meant to accomplish through them. Therefore, I have explained the meaning of the principle, its evidences, its importance. Its parts or sections, and the estimated act in the saying ~ actions depend on intentions ~. Also, why intention is importantly considered, its location, and ruling on pronunciation principle. I have discussed the intention as a basis and as a condition, its time. The condition of the principle …

The Legality Of A Comprehensive Maintenance Contract Between Al-Gharar (Risk/Uncertainty) And Jurisprudential Need: An Analytical Purposive Study., Maher Haswa

UAEU Law Journal

The comprehensive maintenance contract is a type of contemporized contracts to which the general rules of contracts apply. Under the contract, one party has the obligation, periodically and in emergency cases, to perform the necessary acts to keep a certain property in a good condition for its use. The contract also states the agreed wages, tools and raw materials.

Many scholars have been reluctant to rule for the legality of the comprehensive maintenance contract because it involves uncertainty. This led the Islamic Fiqh Academy to postpone its ruling on the contract for more studies. Therefore, this research analyses the effect …

Islam And Democracy: Appreciating The Nuance And Complexity Of Legal Systems With A Basis In Religion, Massimo Campanini, Mohamed Arafa

Barry Law Review

No abstract provided.

When The Rule Invites The Exceptions: How The Arizona Supreme Court's Attempt To Clarify The Economic Loss Rule In Flagstaff Affordable Housing Has Led To Discontinuity In Subsequent Application, Grant H. Frazier, Justin J. Larson

Barry Law Review

No abstract provided.

A Lit Stick Of Dynamite: The Story Of Desegregation In Clinton, Tennessee, Johnny Cerisano

Barry Law Review

No abstract provided.

Modeling Narrowest Grounds, Maxwell Stearns

Faculty Scholarship

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not …

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer

Washington Law Review Online

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …

Objective Punishment, Anthony M. Dillof

Law Faculty Research Publications

Should the punishment fit the criminal as well as the crime? The article argues that idiosyncratic features of the criminal that might affect subjective punishment experience should not be considered when assessing the severity of the punishment for proportionality purposes.

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

Digital Disease Surveillance, Alan Z. Rozenshtein

American University Law Review

The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap.

Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what …

The Participation Principle And The Dialectic Of Sovereignty-Sharing, George K. Foster

Seattle University Law Review

States around the world are ceding authority to international institutions, devolving powers to lower-level political subdivisions, and granting forms of autonomy to Indigenous peoples and other minority groups. At the same time, states are increasingly offering groups and individuals “participation rights”: opportunities to participate in sovereign prerogatives without exercising control. These opportunities range from providing input into environmental decision-making, to collaborating with law enforcement in community policing programs, to receiving a share of natural-resource revenues. This Article contends that all of these developments represent a dividing up of the collection of rights known as sovereignty, and that participation rights reflect …

Dobbs And The Fate Of The Conservative Legal Movement, J. Joel Alicea

Scholarly Articles

The conservative legal movement finds itself at its most precarious point since its inception in the early 1970s. That might sound implausible. The last four years saw the appointment of three Supreme Court justices, dozens of appellate judges, and nearly 200 district court judges—almost all coming from within the ranks of the conservative legal movement. Conservatives on the Supreme Court now (ostensibly) hold a 6–3 majority, making it, in all likelihood, the most conservative Court we will see in our lifetimes. It would thus be easy to conclude that the conservative legal movement is at its apogee.

But it is …

Duress In Immigration Law, Elizabeth A. Keyes

Seattle University Law Review

The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in …

Spirit Of The Corporation, Russell Powell

Seattle University Law Review

Christian theologians have analyzed the productive and destructive qualities of institutions, sometimes attributing to them human virtues and vices. In City of God, Saint Augustine describes a utopian vision of human community within a Christian context as an alternative to the flawed “City of Man.” Contemporary theologians and sociologists have described collective structures of human behavior in institutions as having a kind of “spirit” analogous to the individual human “spirit.” Institutions are then assumed to take on an existence separate from the individuals within them, and in fact, the “spirit” of an institution influences the behavior of individuals. In The …

The Virginia Company To Chick-Fil-A: Christian Business In America, 1600–2000, Joseph P. Slaughter

Seattle University Law Review

The Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. is one of its most controversial in recent history. Burwell’s narrow 5–4 ruling states that the Religious Freedom Restoration Act of 1993 applies to closely held, for-profit corporations seeking religious exemptions to the Affordable Care Act. As a result, the Burwell decision thrust Hobby Lobby, the national craft chain established by the conservative evangelical Green family of Oklahoma City, Oklahoma, onto the national stage. Firms like Hobby Lobby and Chick-fil-A, however, reject the conventional wisdom Justice Ginsburg explained in Burwell and instead embrace an approach to business with …

The Spirit Is Willing: A Proposal For American Single Malt Whiskey, Raymond Cleaveland

Seattle University Law Review

Over the past twenty-five years, small, independent American distilleries have carved out a new niche in the United States liquor market: craft single malt whiskey. Inspired by the success of single malt Scotch and other single malts, American craft distillers are now fighting for their own shelf behind the bar and in the liquor store aisle. In 2018, a cadre of these distillers petitioned the U.S. Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau to formally recognize a new category of whiskey in the Code of Federal Regulations: American Single Malt Whiskey. For purposes of consumer protection, the Treasury …