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Procedural Due Process Claims, Erwin Chemerinsky 2016 Touro College Jacob D. Fuchsberg Law Center

Procedural Due Process Claims, Erwin Chemerinsky

Touro Law Review

No abstract provided.


Extending Graham's Interpretive Theory Into Common Law: A Multiple-Case Study, Chris Hayes 2016 The University of Western Ontario

Extending Graham's Interpretive Theory Into Common Law: A Multiple-Case Study, Chris Hayes

Master of Studies in Law Research Papers Repository

What determines the outcome of judicial decisions? A traditional answer to this question is that it involves a complex application of rules derived from the reasons for judgment of analogous common law decisions and applicable statutes under the doctrine of stare decisis. This answer is problematic. One significant problem of this answer is its inability to explain the outcome of cases where the judgment does not appear to be based on these traditionally recognized sources. An alternative answer, provided by a particular field of legal scholarship, Legal Realism, posits that “other” factors make a significant impact on the outcome of ...


Admiralty-Sovereign Immunity-Philippine Corporation's Suit To Recover Damages Caused By Collision With Public Vessel May Proceed Only Under Jurisdiction Of The Public Vessels Act, And May Be Barred By That Act's Reciprocity Provision, B. Randall Blackwood 2016 University of Georgia School of Law

Admiralty-Sovereign Immunity-Philippine Corporation's Suit To Recover Damages Caused By Collision With Public Vessel May Proceed Only Under Jurisdiction Of The Public Vessels Act, And May Be Barred By That Act's Reciprocity Provision, B. Randall Blackwood

Georgia Journal of International & Comparative Law

No abstract provided.


Juvenile Culpability And The Felony Murder Rule: Applying The Enmund Standard To Juveniles Facing Felony Murder Charges, Sterling Root 2016 Trinity College, Hartford Connecticut

Juvenile Culpability And The Felony Murder Rule: Applying The Enmund Standard To Juveniles Facing Felony Murder Charges, Sterling Root

Senior Theses and Projects

Over the past decade, the Supreme Court has issued decisions in numerous cases (Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana) involving juvenile sentencing that have radically transformed our juvenile criminal justice system. While some of these cases did involve juveniles convicted of felony murder, the Supreme Court never directly addressed how to handle juvenile sentencing in felony murder cases. This leaves a gap in society’s understanding of juvenile felony murder sentencing that must be addressed. Otherwise, many juveniles that never intended, attempted, or wished that a life be taken might spend the rest ...


The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern 2016 Seattle University School of Law

The English East India Company And The Modern Corporation: Legacies, Lessons, And Limitations, Philip J. Stern

Seattle University Law Review

The English East India Company was first chartered in 1600, endured until the late nineteenth century, and, in a clever act of corporate resurrection, has even recently returned as a global, upmarket retail outlet selling fine foods and commemorative coins. It has also endured in the popular imagination and culture, churning out heroes and villains alike in film, television, and video games. The script writer for a forthcoming BBC miniseries, in which the East India Company stars as the prime antagonist, even noted recently that the Company was like “the CIA, the NSA, and the biggest, baddest multinational corporation on ...


Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. McSweeney 2016 William & Mary Law School

Creating A Literature For The King’S Courts In The Later Thirteenth Century: Hengham Magna, Fet Asaver, And Bracton, Thomas J. Mcsweeney

Faculty Publications

The early common law produced a rich literature. This article examines two of the most popular legal treatises of the second half of the thirteenth century, Hengham Magna and Fet Asaver. It has long been recognized that these two treatises bear some relationship to each other. This article will attempt to establish that relationship, arguing that Hengham Magna and Fet Asaver were written by different people; that Fet Asaver borrows from Hengham Magna; and that the authors of both texts had independent access to the Bracton treatise. The article concludes by suggesting a new way to think about the legal ...


A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood 2016 Barry University

A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.


Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock 2016 Barry University

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock

Faculty Scholarship

No abstract provided.


The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher 2016 Brooklyn Law School

The Principle Of Legality And A Common Law Bill Of Rights—Clear Statement Rules Head Down Under, Dan Meagher

Brooklyn Journal of International Law

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that, at its most critical moments, was (and continues to be) informed by U.S. constitutional law design and statutory interpretation principles. On one level, that is no surprise when “it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” But, what is extraordinary is that the decision of the framers of the Australian Constitution ...


"To The Devil We Sprang And To The Devil We Shall Go": Memory And History In The Narrative Of British Medieval Constitutionality, Helen W. Tschurr 2016 University of Puget Sound

"To The Devil We Sprang And To The Devil We Shall Go": Memory And History In The Narrative Of British Medieval Constitutionality, Helen W. Tschurr

Summer Research

The British Bill of Rights is arguably one of the most important documents in history; it symbolizes modernity, legal protection for popular sovereignty, and has inspired several political and intellectual revolutions. The Bill of Rights is a physical manifestation of the British constitution and represents a triumph of constitutionality over despotism, the struggle which has defined British history since the Norman Invasion in 1066, and which has been deemed the de facto constitution itself. Because of its unique composition, the British constitution has been a hotly debated historical subject since the Glorious Revolution. Most scholarship on this topic has been ...


Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller 2016 The George Washington University Law School

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

Articles

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise ...


The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey Assistant Professor 2016 Peter A. Allard School of Law, University of British Columbia

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey Assistant Professor

Osgoode Legal Studies Research Paper Series

This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".


Lights Hidden Under Bushel's Case, Thomas A. Green 2016 University of Michigan Law School

Lights Hidden Under Bushel's Case, Thomas A. Green

Book Chapters

Some forty years ago, Charlie Donahue created a course which he titled "Law, Morals and Society." Designed for undergraduates, and situated among the offerings of the University of Michigan's interdisciplinary Medieval and Renaissance Collegium, the course reflected the approach to doing history that, as this volume recognizes, Charlie has followed throughout his long and enormously influential career as scholar, teacher, lecturer, and inepressible master of well-timed interventions during conference-panel discussion periods. "LMS" was composed of four units. Charlie, who taught two of them, led off with the legal basis for the deposition of Richard II; I followed with the ...


Copyright And Good Faith Purchasers, Shyamkrishna Balganesh 2016 University of Pennsylvania Law School

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...


Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders 2016 University of Idaho College of Law

Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders

Articles

In many states, legislatures have mandated juryless fact-finding in common law– based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to ...


Le Concept Dé Dignité Le Droit Américain, Elisabeth Zoller 2016 Indiana University Maurer School of Law

Le Concept Dé Dignité Le Droit Américain, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen 2016 University at Buffalo School of Law

On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or ...


A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine 2016 Brooklyn Law School

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that ...


Transparency And Comparative Executive Clemency: Global Lessons For Pardon Reform In The United States, Andrew Novak 2016 George Mason University

Transparency And Comparative Executive Clemency: Global Lessons For Pardon Reform In The United States, Andrew Novak

University of Michigan Journal of Law Reform

This Article argues for transparency in the clemency process and contends that the concept of clemency as a benign sovereign’s “act of grace” is no longer appropriate in the modern world where executive action is subordinate to principles of constitutional due process and administrative equity. Despite calls for federal clemency reform in the United States, little comparative research examines clemency elsewhere in the common law world. This Article compares common law countries’ constitutional clemency mechanisms designed to promote openness, public and victim participation, and rational decision-making. In addition, this Article proposes four reforms to the U.S. pardon system ...


Retention And Reform In Japanese Capital Punishment, David T. Johnson 2016 University of Michigan Law School

Retention And Reform In Japanese Capital Punishment, David T. Johnson

University of Michigan Journal of Law Reform

This Article focuses on the failure of abolition and of death penalty reform in Japan in order to illustrate contingencies in the trajectory of capital punishment in the modern world. Part I describes three facts about postwar Japan that help explain why it retains capital punishment today: a missed opportunity for abolition during the American occupation of the country after World War II; the long-term rule of a conservative political party; and economic and geopolitical power that has enabled the country to resist the influence of international norms. Part II describes a few ways in which Japanese capital punishment has ...


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