Public Law and Legal Theory Commons^™

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Notre Dame Law Review

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Interring The Unitary Executive, Christine Kexel Chabot

Notre Dame Law Review

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today. Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power. Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding. The comprehensive historical record introduced by this Article lays this debate …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Eviction Moratorium Redux, Cardozo Public Interest Law Student Association, Cardozo Real Estate Law Association

2022–2023 Flyers

No abstract provided.

Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Public Acceptance Of Medical Screening Recommendations, Safety Risks, And Implied Liabilities Requirements For Space Flight Participation, Cory J. Trunkhill

Doctoral Dissertations and Master's Theses

The space tourism industry is preparing to send space flight participants on orbital and suborbital flights. Space flight participants are not professional astronauts and are not subject to the rules and guidelines covering space flight crewmembers. This research addresses public acceptance of current Federal Aviation Administration guidance and regulations as designated for civil participation in human space flight.

The research utilized an ordinal linear regression analysis of survey data to explore the public acceptance of the current medical screening recommended guidance and the regulations for safety risk and implied liability for space flight participation. Independent variables constituted participant demographic representations …

Constitutional Traditions As Boundaries In Standardizing Administrative Rulemaking Through Trade Agreements, Han-Wei Liu, Ching-Fu Lin

Research Collection Yong Pung How School Of Law

Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.

Exponential Growth Bias And The Law: Why Do We Save Too Little, Borrow Too Much, And Fail To React On Time To Deadly Pandemics And Climate Change?, Doron Teichman,, Eyal Zamir, Professor Of Commercial Law

Vanderbilt Law Review

Many human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth.

This phenomenon, dubbed the exponential growth bias (“EGB”), has been documented in numerous contexts and across different populations, using both experimental and observational methods.

Despite its centrality to human decisionmaking, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of the EGB and the law. Incorporating the EGB into legal analysis sheds a …

My Three Criminal Justice Careers, Brisa Sanchez

Undergraduate Scholarly Works

This undergrad research paper is about the basics of the three components of criminal justice careers and the careers and salaries they do for a living.

The Role Of Recognition In Kelsen's Account Of Legal Obligation And Political Duty, David Ingram

Philosophy: Faculty Publications and Other Works

Kelsen’s critique of absolute sovereignty famously appeals to a basic norm of international recognition. However, in his discussion of legal obligation, generally speaking, he notoriously rejects mutual recognition as having any normative consequence. I argue that this apparent contradiction in Kelsen's estimate regarding the normative force of recognition is resolved in his dynamic account of the democratic generation of law. Democracy is embedded within a modern political ethos that obligates legal subjects to recognize each other along four dimensions: as contractors whose mutually beneficial cooperation measures esteem by fair standards of contribution; as autonomous agents endowed with equal rights; as …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

Holding States Accountable For Harmful Algal Blooms: Florida's Water Crisis In Focus, Jason Totoiu, Jaclyn Lopez

University of Florida Journal of Law & Public Policy

Scientists generally agree that agricultural runoff is a principal source of nutrient pollution in the United States. Intensive agricultural practices have resulted in decades of phosphorus and nitrogen accumulating in the natural system which continue to contribute substantially to nutrients entering watersheds. Coupled with failed water quality control measures, this water pollution has led to some of the worst harmful algal blooms (HABs) in recorded history. These nonpoint sources need to be addressed to restore and protect water quality.

Florida’s Lake Okeechobee watershed provides an apt case study. Commonly referred to as the “liquid heart” of the Everglades, the lake …

Hidden In Plain Sight: Two Models Of Medicare Privatization, Hannah Ruth Leibson

University of Florida Journal of Law & Public Policy

Medicare and private insurance are often cast as diametrically opposed forces. This framing is not only inaccurate, but it obscures the dynamic relationship that has existed between these entities for several decades. Private insurers have been playing an active role in Medicare delivery since its passage in 1965, and their role has expanded over time.

This Article seeks to illuminate the way privatization has impacted Medicare and what current privatization policy choices mean for its future. This Article draws from the copious literature on government administration and privatization to explain two key models of privatization within the Medicare program. Highlighting …

The Pro-Choice Case For Overturning Roe V. Wade: A New Constitutional Home For Reproductive Rights, Jordan Grana

University of Florida Journal of Law & Public Policy

Reproductive rights, despite their white-hot controversial nature in the last decades of American politics and their life-changing impact on those who are denied such rights, are a constitutional anomaly. More than any other right forced to take shelter with the right to privacy in the Fourteenth Amendment’s cramped Due Process Clause, reproductive rights are in danger of losing their federal constitutional protection. This Note posits that pro-choice activists must abandon Roe v. Wade and its progeny––not because the cases are wrong, but simply because they are unlikely to survive much longer. Instead, the goal of preserving access to reproductive rights …

Black Culture Is "Professional": Causation After Bostock & Racial Stereotypes, Adriante Carter

University of Florida Journal of Law & Public Policy

Employment discrimination has progressed past the days of overt prejudices. In today’s society, employment discrimination manifests as stereotypes that perpetuate negative results. Those who suffer from stereotypic discrimination have long been denied redress for these wrongs. The U.S. Supreme Court’s decision in Bostock, this Note argues, is a way forward. This Note argues that case law has developed, and should continue to develop, in a way that recognizes racial stereotyping as discriminatory. This Note explores the history of this case law and examines how the theory of causation from Bostock can be used to better the jurisprudence on racial …

Voting By Proxy-Meddling In Foreign Elections And Public International Law, Patrick C. R. Terry

Indiana Journal of Global Legal Studies

Following the alleged Russian meddling in the 2016 US presidential election, there has been noticeable interest in the lawfulness of foreign interference in another state's elections under public international law. The obvious lack of previous research on the issue is surprising, given that election meddling in other states has been a widespread practice since at least the end of World War II. Indeed, according to Dov Levin, between 1946 and 2000, the United States and the Soviet Union (and Russia) alone were responsible for 117 partisan "electoral interventions" in other states. What is more, meddling in foreign elections is effective. …

Law's Tacit Dimension: Audiovisual Proof Of Incitement In The Impeachment Trial Of Donald J. Trump, Richard Sherwin

Articles & Chapters

In arguing their case for the impeachment of Donald J. Trump for inciting a violent insurrection, prosecutors made extensive use of video images of Trump supporters violently overtaking Capitol police and ransacking the Capitol building once they had forced their way inside. But the rally video that immediately preceded Trump’s January 6 speech was ignored completely. Should it have been brought into the prosecution’s case? If it had been, how might it have aided the prosecution’s contention that Trump was guilty of inciting violent insurrection?

In this article, I contend that the prosecution team’s insufficient understanding of how, and with …

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …