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Full-Text Articles in Jurisprudence

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman Sep 2917

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman

Florida State University Law Review

In 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is anti-trust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to ...


The Human Right To A Healthy Environment: Pushing The Boundaries In The Inter-American System, Sarah Dávila-Ruhaak Oct 2019

The Human Right To A Healthy Environment: Pushing The Boundaries In The Inter-American System, Sarah Dávila-Ruhaak

Conference: The Social Practice of Human Rights

The connection between the environment and human rights is not a surprising one. The enjoyment of human rights depends on a person’s ability to live free from interference and to have his or her rights protected. The interdependence of human rights and the protection of the environment is manifested in the full and effective enjoyment of the rights to life, highest attainable standard of physical and mental health, adequate standard of living, adequate food, clean water and sanitation, housing, culture, freedom of expression and association, information and education, participation, effective remedies, and the rights of indigenous peoples. Without adequate ...


Banning Plastic Straws: The Beginning Of The War Against Plastics, Marcela Romero Mosquera Sep 2019

Banning Plastic Straws: The Beginning Of The War Against Plastics, Marcela Romero Mosquera

Environmental and Earth Law Journal (EELJ)

No abstract provided.


Heller, Mcdonald, And Murder: Testing The More Guns = More Murder Thesis, Don B. Kates, Carlisle Moody Sep 2019

Heller, Mcdonald, And Murder: Testing The More Guns = More Murder Thesis, Don B. Kates, Carlisle Moody

Carlisle Moody

No abstract provided.


Sexual Harassment Ndas: Privacy, Complicity, And The Paradox Of Blackmail, Scott Altman Aug 2019

Sexual Harassment Ndas: Privacy, Complicity, And The Paradox Of Blackmail, Scott Altman

University of Southern California Legal Studies Working Paper Series

Harvey Weinstein and the #MeToo movement focused public attention on both sexual predation and the non-disclosure agreements (NDAs) that help it to persist. NDAs help repeat perpetrators avoid detection and punishment, increasing the risk of harm to future victims. At the same time, NDAs are thought to have benefits. They protect informational privacy interests of both perpetrators and victims, facilitate dispute settlement, and provide victims with larger settlement awards.

This article offers moral arguments against the supposed virtues of NDAs. Guilty perpetrators are not entitled to informational privacy about their wrongs. It might be thought that NDAs protect perpetrators from ...


Fair Precaution, Gregory C. Keating Aug 2019

Fair Precaution, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms ...


The Character Of The Business: Looking Through "Broken Windows" For Liability In Mass Shootings & Other Third-Party Criminal Acts, Madison Shepley Aug 2019

The Character Of The Business: Looking Through "Broken Windows" For Liability In Mass Shootings & Other Third-Party Criminal Acts, Madison Shepley

Seattle University Law Review

Mass violence and third-party criminal acts are increasing in prevalence, and Washington State's current prior incidents liability analysis does not fully address public policy concerns of safety. This Comment argues for an expansive standard of the definition of character of the business that incorporates a sociological understanding of the effects of an atmosphere of crime. It provides an overview of the various state analyses for determining liability for third-party criminal conduct and breaks down how states have incorporated the concept of character of the business as a factor in liability analysis, ultimately turning to a discussion of how the ...


Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens Aug 2019

Survey Of Washington Search And Seizure Law: 2019 Update, Justice Charles W. Johnson, Justice Debra L. Stephens

Seattle University Law Review

This survey is intended to serve as a resource to which Washington lawyers, judges, law enforcement officers, and others can turn as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, this Survey requires periodic updates to address new cases interpreting the Washington constitution and the U.S. Constitution and to reflect the current state of the law. Many of these cases involve the Washington State Supreme Court’s interpretation of the Washington constitution. Also, as the U.S. Supreme Court has continued to examine Fourth Amendment search and ...


Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann Aug 2019

Law Matters -- Less Than We Thought, Daniel M. Klerman, Holger Spamann

University of Southern California Legal Studies Working Paper Series

In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to ...


Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating Aug 2019

Between Absolutism And Efficiency: Reply To Professors Giestfeld, Gray, And Priel, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers are part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part ...


Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper Aug 2019

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Jesse H Choper

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the ...


Is Tort Law "Private"?, Gregory C. Keating Aug 2019

Is Tort Law "Private"?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

A prominent, important strand of contemporary thinking about tort law—represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib—has coalesced around the thesis that the concept of “private law” is the key to the subject. In one familiar usage of the term, the thesis that tort is private law is innocuous. Tort is private law in the sense that it is concerned with relations among persons in civil society. As the banner under which a school of thought marches, “private law” is a much weightier concept. It asserts that the essence of tort law is encapsulated ...


Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating Aug 2019

Corrective Justice: Sovereign Or Subordinate?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law—especially tort law—over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master ...


Mental Health Jail Diversion: A Therapeutic Approach To Offending In Twenty-First Century America, Ryan J. Parent Aug 2019

Mental Health Jail Diversion: A Therapeutic Approach To Offending In Twenty-First Century America, Ryan J. Parent

Criminology Student Work

This analysis is concerned with understanding the facets of criminal justice diversion programs that successfully improve the mental wellbeing of participants and, as a subsequent effect, reduce offending amongst the mentally ill populous in the United States. An inquiry of pre-program and post-program data from both adult and juvenile mental health specific programs reveals that participation amongst both groups shows a meaningful reduction in new/repeat offending in comparison to non-participants. The data shows that the expansion of law enforcement Crisis Intervention Team’s (CIT’s) has a compounding effect to the positive results. A review of these programs in ...


The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters Aug 2019

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Daniel Walters

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference ...


Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young Aug 2019

Waiting For Rights: Progressive Realization And Lost Time, Katharine G. Young

Katharine G. Young

The obligation of ‘progressive realization’ under the International Covenant on Economic and Social Rights is often interpreted in light of available resources - this chapter examines, instead, the variable of time. Noting that delay of rights is akin to denial of rights, Young explores the various ways in which accountability models, at the international level, have elaborated on concrete, and temporal, benchmarks. These include the minimum core, and non-retrogression doctrines, and the exercises in comparative rankings. These are important sources of accountability, especially for positive obligations. And yet with the promise of rights, law nevertheless structures the expectations of rights-holders. This ...


The Future Of Economic And Social Rights: Introduction, Katharine G. Young Aug 2019

The Future Of Economic And Social Rights: Introduction, Katharine G. Young

Katharine G. Young

The future of economic and social rights is unlikely to resemble its past. Neglected within the human rights movement, avoided by courts, and subsumed within a conception of development in which economic growth was considered a necessary (and, by some, sufficient) condition for rights fulfillment, economic and social rights enjoyed an uncertain status in international human rights law and in the public laws of most countries. Yet today, under conditions of immense poverty, insecurity, and social distress, the rights to education, health care, housing, social security, food, water, and sanitation are increasingly at the top of the human rights agenda ...


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz Jul 2019

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod Jul 2019

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers ...


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jun 2019

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court ...


The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis Jun 2019

The Declaration Of Independence As Introduction To The Constitution, Alexander Tsesis

Alexander Tsesis

No abstract provided.


Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan Jun 2019

Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan

Barry Sullivan

No abstract provided.


Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki Jun 2019

Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki

Nadia N. Sawicki

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to both critics ...


Legal Personhood For Artificial Intelligence, Tyler Jaynes Jun 2019

Legal Personhood For Artificial Intelligence, Tyler Jaynes

Tyler Jaynes

The concept of artificial intelligence is not new nor is the notion that it should be granted legal protections given its influence on human activity. What is new, on a relative scale, is the notion that artificial intelligence can possess citizenship—a concept reserved only for humans, as it presupposes the idea of possessing civil duties and protections. Where there are several decades’ worth of writing on the concept of the legal status of computational artificial artefacts in the USA and elsewhere, it is surprising that law makers internationally have come to a standstill to protect our silicon brainchildren. In ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


How Trust-Like Is Russia's Fiduciary Management? Answers From Louisiana, Markus G. Puder, Anton D. Rudokvas Jun 2019

How Trust-Like Is Russia's Fiduciary Management? Answers From Louisiana, Markus G. Puder, Anton D. Rudokvas

Louisiana Law Review

The article discusses estate trust management and fiduciary management under the Civil Code of the Russian Federation, its comparison to the trust law in Louisiana and some examples of Russian jurisprudence on the topics.


The Case Against Absolute Judicial Immunity For Immigration Judges Jun 2019

The Case Against Absolute Judicial Immunity For Immigration Judges

Law & Inequality: A Journal of Theory and Practice

A federal regulation states that immigration hearings shall be open to the public. Courts and scholars also have located a right to observe these proceedings in the First Amendment. And yet immigration judges (IJ) have excluded members of the press and other observers from hearings for no stated legal reasons, thus effectively eliminating public scrutiny of proceedings that affect millions of citizens and non-citizens in the United States. In response to a lawsuit pursuing monetary, injunctive, and declaratory relief after an IJ ordered guards to remove a reporter from a federal building, an Eleventh Circuit panel held IJs have absolute ...


Pepperdine University School Of Law Legal Summaries, Analise Nuxoll Jun 2019

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama Jun 2019

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas ...


Considering The Costs: Adopting A Judicial Test For The Least Restrictive Environment Mandate Of The Individuals With Disabilities Education Act, Edmund J. Rooney Jun 2019

Considering The Costs: Adopting A Judicial Test For The Least Restrictive Environment Mandate Of The Individuals With Disabilities Education Act, Edmund J. Rooney

Journal of Legislation

No abstract provided.