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What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

A New Philosophy In The Supreme Court, Robert M. Sanger

Robert M. Sanger

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

The Alien-Citizen Paradox And Other Consequences Of U.S. Colonialism, Ediberto Román

Ediberto Roman

This Article examines the United States' 100-year-old failed promise. In addition to detailing the unequal citizenship status of the people of Puerto Rico, this Article examines the role that racial and ethnic-based prejudice has played in this issue. 34 Essentially, this Article seeks to compare the traditional legal and political rhetoric of American inclusiveness and the virtues of U.S. citizenship to the reality of colonialism and the impact white supremacy has had on U.S. colonial history. By addressing the subordinated status of "aliencitizens," this Article illustrates the incompatibility of equality under colonialism. As Congress addresses the question of Puerto Rico's …

Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Second Amendment And Gun Control, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[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 …

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Supreme Court 2000-2001 Term: First Amendment Cases, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2007 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Extralegal Supreme Court Policy Making, Joelle A. Moreno

Joelle A. Moreno

The Colbert Report aired its final episode on December 18, 2014. Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly "divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact — such …

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Samuel J. Levine

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Samuel J. Levine

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to …

Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield

Alan E Garfield

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Kit Kinports

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether …

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Thomas E. Baker

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

Labor Unions And Corporations Both Play Their Vital Roles, Alan E. Garfield

Alan E Garfield

Not All Black And White, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield

Alan E Garfield

No abstract provided.

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.