Jurisprudence Commons^™

What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman

Faculty Scholarship

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

A Keystroke Causes A Tornado: Applying Chaos Theory To International Cyber Warfare Law, Daniel Garrie, Masha Simonova

Brooklyn Journal of International Law

Cyber warfare today finds itself on the front page of the news daily. It is increasingly apparent that the cyber domain demands more guidance, with leaders opting for the deployment of cyber capabilities to bypass kinetic warfare norms. Proposed solutions abound, but none adequately address the specific features of cyber warfare that set it apart from traditional kinetic warfare. This Article argues that a new legal framework is necessary to properly address this problem, and such a doctrine should incorporate principles of chaos theory. Chaos theory is a branch of mathematics dealing with complex systems, with the most well-known example …

Violating The Inviolate?: Divided Tennessee Supreme Court Upholds Constitutionality Of Noneconomic Damage Caps, Focuses On Right To Jury Trial, Bailey D. Barnes

Faculty Publications

On Feb. 26, in McClay v. Airport Management Services LLC, the Tennessee Supreme Court upheld the constitutionality of the noneconomic damage cap provisions of the Tennessee Civil Justice Act of 2011. The court’s analysis primarily centered on the constitutional right to a trial by jury. The justices split on whether the General Assembly maintains the authority to alter or abridge the state’s common law when doing so affects a constitutional right.

The three-justice majority concluded that noneconomic damage caps do not violate the right to a jury trial, though one of those justices authored a concurring opinion declaring the issue …

Pepperdine University School Of Law Legal Summaries, Matthew Rollin, Kelly Vollmer

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright

St. John's Law Review

(Excerpt)

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. …

Texts, Language, And History In The Madhab-Law Tradition: A Study Of The ShāfiʿĪ School, Tarek Ghanem

Theses and Dissertations

This thesis advances the study of the legal literature from the madhhab-law tradition by way of studying the Shāfiʿī literary tradition and its two most authoritative classics. These two works are al-Nawawī’s (d. 676/1278) digest Minhāj al-ṭālibīn and Ibn Ḥajar al-Haytamī’s (d. 974/1567) commentary on it, Tuḥfat al-minhāj. This study will provide a typology of the development of the Shāfiʿī juristic texts. The typology is based on an indigenous and coherent periodization centered around an analysis of the intellectual and social developments within the Shāfiʿī legal tradition, not the classical Eurocentric periodization scheme. The main objective of this typology is …

Gender And Judicial Decision-Making, Alexandra Just

Undergraduate Theses

This study employs a unique two-tiered approach, involving both quantitative and qualitative methodology to analyze the influences – specifically, a judge’s gender – on the judicial decision-making process. First, a quantitative bivariate regression analysis was conducted to determine whether a Federal District Court judge’s gender had a statistically significant influence on the ideological direction of case outcomes (which is either liberal, meaning the decision was in favor of the petitioner, or conservative, meaning the decision was against the petitioner). Data was analyzed using the statistical program SPSS and was pulled from the 2016 Carp-Manning database, which contains over 110,000 federal …

Drug Courts And The Following Of The Federal Guidelines, Charles James Souza

Master’s Theses and Projects

During the 1980’s, drug offense were running high within the United States. The court system along with the police and other fields were forced to form other methods of dealing with offenders who have a substance abuse problem. In 1989, the first drug court in the United States was formed in the state if Florida. The idea was to create a therapeutic method to help those who are committing non-violent criminal acts due to their addiction. The goal of drug court was to get offenders the treatment they needed so they would not resort to criminal activity. Drug court personal …

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development …

Rules, Standards, And Such, Kevin M. Clermont

Cornell Law Faculty Publications

This Article aims to create a complete typology of the forms of decisional law. Distinguishing "rules" from "standards" is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

Rules, Standards, And Such, Kevin M. Clermont

Buffalo Law Review

This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

Law Is What The Judge Had For Breakfast: A Brief History Of An Unpalatable Idea, Dan Priel

Buffalo Law Review

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references …

Contract Lore As Heuristic Starting Points, Colin P. Marks

Faculty Works

This article examines the concept of “contract lore,” a term used to describe commonly repeated propositions about contract law that may not accurately reflect how courts actually decide cases. Prior scholarship has suggested that the persistence of such statements reflects aspirational thinking among contract scholars and practitioners, maintained through a form of cognitive dissonance. This article challenges that explanation and instead argues that many examples of contract lore are better understood as heuristic starting points used in legal analysis. Rather than functioning as definitive statements of law, these propositions provide an initial framework from which students, lawyers, and judges begin …

Challenging Congress's Single-Member District Mandate For U.S. House Elections On Political Association Grounds, Austin Plier

William & Mary Law Review

No abstract provided.

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Misuse Of The "Reasonably Anticipated Use" Standard In Louisiana Products Liability Act Jurisprudence, Steven E. Spires

Louisiana Law Review

The article examines the application of the 'reasonably anticipated use' standard in Louisiana Products Liability Act (LPLA) jurisprudence, and offers proposed jurisprudential rules that should be adopted by the Louisiana Supreme Court to guide lower courts on the standard.

Judge, J. Peter Byrne

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

An Advocate's Perception, Margaret D. Mcgaughey

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …

A Tribute To Judge Coffin, Stephen Breyer

Maine Law Review

The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …