Digital Commons Network^™

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Themes, Doctrine, And Pedagogy In The 2013-2014 National Health Law Moot Court Competition Problem, Anita Bernstein

Faculty Scholarship

No abstract provided.

Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler

Faculty Scholarship

The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …

The Dangers Of Press Clause Dicta, Ronnell Andersen Jones

Faculty Scholarship

The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars …

What The Supreme Court Thinks Of The Press And Why It Matters, Ronnell Andersen Jones

Faculty Scholarship

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging.

This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Splits In The Rock: The Conflicting Interpretations Of The Seminole Rock Deference Doctrine By The U.S. Courts Of Appeals, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, Martin Gelter, Mathias M. Siems

Faculty Scholarship

The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes …

The Supreme Court As A Constitutional Court, Jamal Greene

Faculty Scholarship

Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.