Law Commons^™

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

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This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

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Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

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Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

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No abstract provided.

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

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No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

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No abstract provided.

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

Individual Preferences In Policy Analysis: A Normative Framework, Gabriel Weil

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No abstract provided.

Diploma Privilege And The Constitution, Patricia E. Salkin, Claudia Angelos, Sara J. Berman, Mary Lu Bilek, Carol L. Chomsky, Marsha Griggs, Joan W. Howarth, Eileen Kaufman, Deborah Jones Meritt, Judith Wegner, Andrea Curcio

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The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

In Defense Of The American Community Survey, Michael Lewyn

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Discusses policy and constitutional arguments against the ACS, a yearly survey administered by the Census Bureau.

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules and principles far …

Policing Narrative, Tal Kastner

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Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower--the mobilization and prioritization of the state's power to kill--I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as …

When Scalia Wasn't Such An Originalist, Michael Lewyn

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Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.

Internet Ethics, American Law, And Jewish Law: A Comparative Overview, Samuel J. Levine, Gertrude N. Levine

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Societies are governed by codes of ethics. In developed societies, parts of these codes form a set of laws, enforceable by legal authorities, with or without assistance from the populace. At times, laws are crafted for the benefit of the powerful members of the society, ensuring preservation of their positions and property, while other constituents may ignore, actively disobey, or challenge laws they believe do not support their ethics. Developing and maintaining appropriate social norms is thus particularly critical for sustaining rapidly changing heterogeneous populaces.

The Internet, devised for the purpose of interconnecting diverse computer networks of research and educational …

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

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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 …

Nuance, Technology, And The Fourth Amendment: A Response To Predictive Policing And Reasonable Suspicion, Fabio Arcila Jr.

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In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein

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Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

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The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.

Towards the end of the article, to clarify and decide the constitutional issues, the author …

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

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This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz

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This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

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No abstract provided.

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

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No abstract provided.

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

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The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …

Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine

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No abstract provided.

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

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More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

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No abstract provided.

The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer

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No abstract provided.

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

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The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …