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Judging Indian Law: What Factors Influence Individual Justice’S Votes On Indian Law In The Modern Era, Grant Christensen

Grant Christensen

Abstract: Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher …

From Four Part Tests To First Principles: Putting Free Speech Jurisprudence Into Perspective, Joshua D. Rosenberg, Joshua P. Davis

Joshua D. Rosenberg

Abstract

Those familiar with free speech jurisprudence know it as a complicated, contradictory, and incoherent agglomeration of hyper-technical three and four part tests. In this article, the authors look back at how each of these different doctrines and tests developed, the purposes it properly serves, and how it became unanchored from those purposes. We show that at bottom the Court approaches freedom of speech much as it does other constitutional rights. The ultimate issues it seeks to resolve are: (1) to what extent does government have a duty to avoid interfering with a speaker? (2) if government has a duty …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order to …

The Problem Of Trans-National Libel, Lili Levi

Lili Levi

Abstract: Forum shopping in trans-national libel cases – “libel tourism” – has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the U.S. passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less protective than the First Amendment. On March 15, 2011, the British Ministry of Justice proposed a draft Defamation Act 2011 with provisions designed, inter alia, to discourage libel tourism. This Article questions the extent to which the …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Hatamyar

Patricia W Hatamyar

This is an empirical study of 1,333 randomly-selected federal district court cases from a five-year period from 2005 to 2010. It is designed to measure the effect of the 2009 decision of Ashcroft v. Iqbal on courts’ rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6). The present piece expands upon my earlier study, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553 (2010). Statistical analysis of the expanded database indicates a continuing, and in some ways strengthened, tendency of courts under Iqbal to grant 12(b)(6) motions, …

Judges As Jailers: The Dangerous Disconnect Between Courts And Corrections, Christopher Keleher

christopher keleher

Lawsuits alleging constitutional violations have forced correctional officials to reduce the scope of intake searches or scrap them altogether. Such suits have revolved around the poles of privacy and security, and privacy has been winning thoroughly. While privacy is a worthwhile goal, three points must be remembered. First, the traditional notion of privacy is inapplicable in the correctional context. Second, correctional officials have a legal duty to protect inmates. Third, the unintended but certainly foreseeable consequence of elevating privacy is increased contraband. Courts have not recognized the realities of contraband—who carries it, how they carry it, why they carry it. …

Insecure Communities: Examining Local Government Participation In U.S. Immigration And Customs Enforcement’S “Secure Communities” Program, Rachel R. Ray

Rachel R Ray

Suffering global economies, war, ethnic and racial tensions, natural disasters, and other exigencies have led to a steady stream of immigrants to the United States. They seek jobs, refuge, asylum, and better opportunities. In fiscal year 2010, the United States Immigration and Customs Enforcement (“ICE”) removed a record-setting 392,000 undocumented immigrants, half of which were convicted criminals. Yet, a careful look behind this impressive number would undoubtedly reveal families torn apart by the removals of undocumented spouses, parents, siblings, and children convicted only of non-violent crimes, traffic violations, or other minor infractions. ICE’s own data shows that 79% of people …

Discrimination Cases In The 2000 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.

The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans On The Brink, Paul M. Secunda

Paul M. Secunda

This article provides a first time look at the numerous challenges facing multiemployer or Taft-Hartley benefit plans in the post-global recession and health care reform world. These plans have provided pension, health, and welfare benefits to union members of smaller employers in itinerant industries for over sixty years and even today, these plans collectively have over ten million participants in over 1500 plans.

Multiemployer plans are increasingly mired in financial trouble and are finding it more difficult to continue to provide adequate retirement and health benefits to their members. Although they once represented one of the great triumphs in American …

The Rise And Fall Of Education Reform: Causal Gaps And The Pressure To Exploit Them, Derek Black

Derek W. Black

The Article provides a unified explanation for the limits of education legal reform. The politics and interests involved in school desegregation, school finance, student disability litigation, and claims on behalf of English Language Learners differ, but each of these reform movements have been undermined or ended by the same inability to establish a precise causal connection between the educational policy or input in question and student outcomes. This Article indentifies the role these causal gaps have played at crucial times in each movement and how they have limited reform. The Article then reveals why these gaps arise, exploring inherent aspects …

Revitalizing Section 2, Christopher Elmendorf

Christopher S. Elmendorf

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act’s core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or …

Reconsidering A Parent’S ‘Apparent’ Authority In Intergenerational Co-Residence: The Need For A Paradigm Shift In Evaluating Parental Consent To Search Adult Children’S Bedrooms, Hillary B. Farber

Hillary B. Farber

Intergenerational households are the fastest growing living arrangement in the country. The foreclosure crisis, high unemployment rate, and exorbitant health care costs are causing adults across the generational spectrum to make choices based on their newly realized financial circumstances. An important social effect caused by the weakened economy is that more adult children are moving back into their parent’s home, and aging parents are increasingly seeking refuge in their adult child’s home.

Firmly established precedent makes clear that a parent’s consent to a police search of a minor child’s bedroom for evidence of a minor’s criminal activity is a reasonable …

American Skin: Dispensing With Colorblindness And Critical Mass In Affirmative Action, Deirdre Bowen

Deirdre M Bowen

This exploratory empirical work examines whether students of color enjoy the benefits articulated by the U.S. Supreme Court in the Grutter decision that rationalized the continuation of affirmative action based on diversity interests. Specifically, the Court stated that affirmative action was permissible because students of all backgrounds would increase their racial understanding and decrease their racial stereotyping of minorities. Neither side was happy with the decision—both skeptical that such benefits could transpire for minority students. Yet, in the heat of continuing debate, neither group has empirical support for their arguments until now. Using survey data of over 370 under-represented minority …

A New Era For Desegregation, Danielle Holley-Walker

Danielle Holley-Walker

No abstract provided.

Temporary Detention Order And Civic Rights, Hossien Maleky Zadeh

hossien Maleky Zadeh

One of the most important decisions made by judicial authorities is to obtain securities from the defendant in the process of proceeding of criminal actions; among the security orders, detention order of defendant is of great significance, because on one hand this order deprives people of one of their most important civic rights, namely of their liberty, and is in contradiction with the Presumption of Innocence, the doctrine which, under Article 37 of the Constitution of I.R. of Iran, has been recognized; and on the other hand, this order may set the defendant at large while his delinquency has not …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia’S Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Chris Edelson

Justice Antonin Scalia recently declared that the 14th Amendment’s Equal Protection Clause simply does not apply to discrimination based on sex or sexual orientation. Though Justice Scalia’s statement is not exactly news, as he had previously suggested as much in dissenting opinions in Romer v. Evans and United States v. Virginia, it does provide an opportunity to consider how he arrived at these conclusions. Justice Scalia argues that he is simply applying the original meaning of the Equal Protection Clause, deferring to tradition and the will of the people until and unless democratic action provides new instructions. This article argues …

Reply Brief For Appellants On Appeal From The United States District Court For The Northern District Of Illinois Case No. 10cv7727 The Honorable [Judge] Dow, Presiding February 22, 2011 Law Office Of Christopher Cooper, Inc. 1140 N. Lasalle, Chicago, Il 60610 (312) 371-6752 (Telephone) (866) 334-7458 (Facsimile) E-Mail: Cooperlaw3234@Gmail.Com Attorney For, Christopher C. Cooper Dr.

Christopher C. Cooper Dr.

REPLY BRIEF (READER, THIS IS THE RIDER TO THE APPELLANT BRIEF THAT WAS FILED ON JANUARY 11, 2011) Plaintiffs-Appellants ask the Seventh Circuit to consider other phenomena that they (Plaintiffs-Appellants) assert represent ballot access restrictions. In the form of a question: Whether the 12,500 signature requirement should be deemed constitutional where there are [other] ballot access impediments: (a). one signature per nominating petition requirement; (b). that individuals must run as non-partisan; (c). that there is a short, 90-day collection period; (d). a crowded field of candidates collecting signatures; and (e) a magnitude of resources (money in particular) needed by a …

The Principle Of Complementarity In The Origins Of Federal Civil Rights Enforcement, 1866-1871, Matthew A. Smith

Matthew A Smith

When the Rome Statute of the International Criminal Court was adopted in 1998, it was praised for its potential to ensure the punishment of international crimes without subjecting states to overzealous international prosecution. The Statute’s careful balance of individual security and sovereign autonomy—achieved by employing a legal concept known as complementarity—is credited as one of its core innovations. However, complementarity’s historical roots run deeper than commentators on the Rome Statute have recognized: complementarity also played a central role over a hundred years earlier in the United States Congress’s efforts to enforce the civil rights of United States citizens. This article …

Integrating Minorities Through Legislation:A Perspective On China, Gulazat Tursun

gulazat tursun

No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

Marjorie A. Silver

In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

Those Who Can't, Teach: What The Legal Career Of John Yoo Tells Us About Who Should Be Teaching Law, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

On Butlers, Architects, And Lawyers: The Professionalism Of "The Remains Of The Day" And Of "The Fountainhead", Susan Daicoff

Susan Daicoff

Several commentators have explored the relationship of a fictional character of the butler, Stevens, in Kazuo Ishiguro’s novel, The Remains of the Day, to the proper professional role of the lawyer, since the novel was published. The professionalism of Stevens is here compared to that of another fictional character, the architect, Roark, in Ayn Rand’s novel, The Fountainhead, as they might be applied in the legal profession. The relationship of empirical research on lawyers’ values, wellbeing, and decisionmaking preferences to these divergent approaches to professionalism is then explored. A diversity of approaches to professional role is proposed as most appropriate, …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

The More Things Change...: Abortion Politics And The Regulation Of Assisted Reproductive Technology, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Abortion and assisted reproductive technology (“ART”) may seem paradoxical in reproductive health: a woman seeks to terminate a pregnancy in the first, while a woman goes through herculean attempts to attain one in the latter. In fact, they share fundamental concerns: women’s health and autonomy. Both include medical procedures, with potential health risks and benefits, and both help a woman choose whether and when to become a mother. Abortion and ART share another commonality: when these issues enter public and political discourse, consideration of women’s health often recedes into the background.

Far From The Classroom, The Cafeteria, And The Playing Field: Why Should The School's Disciplinary Arm Reach Speech Made In A Student's Bedroom?, Susan S. Bendlin

Susan S. Bendlin

The article addresses wehther public schools can regulate students' off-campus internet speech without violating the students' first amendment rights. The article argues that Tinker should be restricted to on-campus speech. The school's authority to regulate students' speech is based on special considerations that exist only in the context of school-supervised activities. Once the speaker moves off-campus, those special circumstances cease to exist. There appears to be no substantial justification for extending the regulatory power of the school far beyond the boundaries of the schoolyard, and federal circuit courts have recently addressed this issue in varying ways.

Conceptions Of Law In The Civil Rights Movement, Christopher W. Schmidt

Christopher W. Schmidt

No abstract provided.