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2004

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Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner Nov 2004

Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner

University of Richmond Law Review

No abstract provided.


The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr. Nov 2004

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.


The Doctrine Of Deference: Shifting Constitutional Presumptions And The Supreme Court's Restatement Of Student Rights, Bernard James, Joanne E.K. Larson Oct 2004

The Doctrine Of Deference: Shifting Constitutional Presumptions And The Supreme Court's Restatement Of Student Rights, Bernard James, Joanne E.K. Larson

South Carolina Law Review

No abstract provided.


Who Has The Body? The Paths To Habeas Corpus Reform, Cary H. Federman Sep 2004

Who Has The Body? The Paths To Habeas Corpus Reform, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of this article is to place the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 within a political and historical framework that describes the effort by the Supreme Court and various interested parties to restrict prisoners’ access to the federal courts by way of habeas corpus. Of principal concern here is how an act of terrorism against the United States provides an opportunity for Congress to restrict death row prisoners from obtaining habeas corpus review. Along with an analysis of Supreme Court decisions, three attempts to limit federal habeas corpus review for state prisoners from the late …


Re-Mapping Equal Protection Jurisprudence: A Legal Geography Of Race And Affirmative Action,, Reginald Oh Aug 2004

Re-Mapping Equal Protection Jurisprudence: A Legal Geography Of Race And Affirmative Action,, Reginald Oh

Law Faculty Articles and Essays

Oh argues that when the United States Supreme Court decided Richmond v. Croson in 1989 and imposed strict scrutiny on state and local government affirmative action programs, it marked a critical moment and turning point in the evolution and development of public and legal discourse on race, racism, and race relations in America. Although many scholars have critically examined the Croson opinion, curiously, scholars have yet to recognize its full ramifications and implications. Aside from the technical doctrinal changes made to equal protection law, the Croson decision is also important because of the way the Court produced and mapped a …


Supreme Court Watch, Reginald Oh Jul 2004

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Oh discusses how the U.S. Supreme Court, in General Dynamics Land Systems, Inc. v. Cline, 124 S. Ct. 1236 (2004), settled a circuit court conflict over the viability of "reverse age discriminations" claim under the Age Discrimination in Employment Act (ADEA). The Court, in a 6-3 decision, held that statutorily protected workers over the age of forty may not bring an ADEA claim alleging that their employer discriminated against them in favor of older employees.


Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander Jun 2004

Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander

Supreme Court Overviews

No abstract provided.


Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald May 2004

Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald

ExpressO

No abstract provided.


Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack May 2004

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …


Right Wing Justice: The Conservative Campaign To Take Over The Courts, Herman Schwartz Apr 2004

Right Wing Justice: The Conservative Campaign To Take Over The Courts, Herman Schwartz

Books

Right Wing Justice raises the alarm about the creeping conservative campaign to "pack" America's courts with judges more identified with their ideological affiliation than their skill or regard for the Constitution. The consequence is that the rule of law is taking a terrific beating from the Supreme Court. Who can forget the debacle of Election 2000? But the consequences of the campaign go far deeper than that, impinging on the daily lives of ordinary Americans who are at the receiving end of attempts to overturn or erode Supreme Court rulings on abortion, school prayer, civil rights, criminal justice, and economic …


Supreme Court Watch, Reginald Oh Apr 2004

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.


The Irrelevance Of Sincerity: Deliberative Democracy In The Supreme Court, John M. Kang Mar 2004

The Irrelevance Of Sincerity: Deliberative Democracy In The Supreme Court, John M. Kang

Saint Louis University Law Journal

No abstract provided.


The Rehnquist Revolution, Erwin Chemerinsky Mar 2004

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …


Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton Feb 2004

Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton

All Faculty Scholarship

No abstract provided.


Can Treasury Overrule The Supreme Court?, Gregg D. Polsky Feb 2004

Can Treasury Overrule The Supreme Court?, Gregg D. Polsky

Scholarly Works

This article considers whether the Treasury's check-the-box regulations, which have been widely praised by tax practitioners, are valid. These regulations generally allow any unincorporated entity to elect whether it will be treated as a corporation or a partnership for tax purposes. When these regulations were first proposed, there was some debate as to whether such an elective regime was foreclosed by the statutory scheme, which requires that "associations" be taxed as corporations. This article argues that the focus of this debate was misplaced because, even assuming that the statutory scheme itself was sufficiently ambiguous as to permit an elective regime, …


Brief For The Respondent, Commissioner Of Internal Revenue V. Banks, 543 U.S. 426 (Supreme Court Of The United States 2004) (No. 03-892), Glenn P. Schwartz Jan 2004

Brief For The Respondent, Commissioner Of Internal Revenue V. Banks, 543 U.S. 426 (Supreme Court Of The United States 2004) (No. 03-892), Glenn P. Schwartz

Court Documents and Proposed Legislation

No abstract provided.


Retooling The Intent Requirement Under The Fourteenth Amendment, Henry L. Chambers, Jr. Jan 2004

Retooling The Intent Requirement Under The Fourteenth Amendment, Henry L. Chambers, Jr.

Law Faculty Publications

Racial classifications carry the largest taint and require the most justification. Strict scrutiny-the level of scrutiny with which the remainder of the article will be concerned-requires that race-based differentiation serve a compelling state interest and be narrowly tailored to serve that interest, guaranteeing that the reason for the differentiation is extremely important and that the link between the means chosen to meet the ends is extremely tight. Though strict scrutiny is difficult to survive, it is triggered only when a state actor engages in intentional or purposeful racial discrimination. Controversy surrounds whether such a trigger is necessary. However, rather than …


Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages (Symposium: The Fifteenth Annual Supreme Court Review), Leon D. Lazer Jan 2004

Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages (Symposium: The Fifteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.


Countermajoritarian Hero Or Zero - Rethinking The Warren Court's Role In The Criminal Procedure Revolution, Corinna Barrett Lain Jan 2004

Countermajoritarian Hero Or Zero - Rethinking The Warren Court's Role In The Criminal Procedure Revolution, Corinna Barrett Lain

Law Faculty Publications

With last fall marking the fiftieth anniversary of Earl Warren's appointment as Chief Justice, enough time has passed to place the criminal procedure revolution in proper historical perspective and rethink the Court's role there as countermajoritarian hero. In the discussion that follows, I aim to do that by examining five of the revolution's most celebrated decisions: Mapp v. Ohio, Gideon v. Wainwright, Miranda v. Arizona, Katz v. United States, and Terry v. Ohio. In none of these cases, I argue, did the Supreme Court act in a manner truly deserving of its countermajoritarian image. To be clear, I do not …


The Law Of Typicality: Examining The Procedural Due Process Implications Of Sandin V. Conner, Donna H. Lee Jan 2004

The Law Of Typicality: Examining The Procedural Due Process Implications Of Sandin V. Conner, Donna H. Lee

Fordham Law Review

Although the Due Process Clause of the Fourteenth Amendment has long protected against deprivations that implicate state-created liberty interests as well as core constitutional concerns, the Supreme Court changed course in liberty interest jurisprudence in Sandin v. Conner. It retreated from a positivist approach and articulated a new test for determining when a prisoner's claim warrants procedural due process. The Court held that the challenged action must impose an "atypical and significant" hardship, but provided little guidance on how to measure typicality and significance. This Article proposes a methodology for examining typicality that is grounded in empirical evidence and advocates …


Investigating New York’S Son Of Sam Law: Problems With The Recent Extension Of Tort Liability For People Convicted Of Crimes, Jessica Yager Jan 2004

Investigating New York’S Son Of Sam Law: Problems With The Recent Extension Of Tort Liability For People Convicted Of Crimes, Jessica Yager

NYLS Law Review

No abstract provided.


Reading Clarence Thomas, Kendall Thomas Jan 2004

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …


Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss Jan 2004

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen …


Supreme Court Watch, Reginald Oh Jan 2004

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the Supreme Court decision Lawrence v. Texas, 123 S. Ct. 24 72 (2003). Writing for the majority, Justice Anthony Kennedy held that the Texas anti-sodomy statute, by criminalizing adult consensual sexual conduct, violated the petitioners' vital interests in liberty and privacy as protected by the substantive due process doctrine under the Fourteenth Amendment.


Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney Jan 2004

Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney

Faculty Scholarship

This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two …


The Torture Warrant: A Response To Professor Strauss, Alan M. Dershowitz Jan 2004

The Torture Warrant: A Response To Professor Strauss, Alan M. Dershowitz

NYLS Law Review

No abstract provided.


An End Of Term Exam: Ot 2003 At The United States Supreme Court, Peter B. Rutledge, Nicole L. Angarella Jan 2004

An End Of Term Exam: Ot 2003 At The United States Supreme Court, Peter B. Rutledge, Nicole L. Angarella

Scholarly Works

This Essay proceeds in two parts. The first part provides the broad overview of October Term 2003. It analyzes current statistics in the size and composition of the Court's caseload and compares those figures to past terms. It also considers the justices' voting patterns and which justices proved to be the "swing" votes, both generally and in particular fields. The second part focuses on the key cases of the Term. It addresses both what the Court decided and what it failed to decide. It critiques those decisions and considers their implications for future doctrinal developments. The Court Consensus offers some …


Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank Jan 2004

Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic value, do …


Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz Jan 2004

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Scholarly Works

No abstract provided.


Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick Jan 2004

Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick

All Faculty Scholarship

The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …