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Articles 211 - 240 of 727
Full-Text Articles in Law
Dedicatory Address: Act Well Your Part: Therein All Honor Lies , William H. Rehnquist
Dedicatory Address: Act Well Your Part: Therein All Honor Lies , William H. Rehnquist
Pepperdine Law Review
No abstract provided.
Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian
Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian
Gregory P. Magarian
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
Corey A Ciocchetti
The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …
Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith
Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith
Faculty Articles
Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …
“Dealing With The Appellate Caseload Crisis”: The Report Of The Federal Courts Study Committee Revisited, Roger J. Miner
“Dealing With The Appellate Caseload Crisis”: The Report Of The Federal Courts Study Committee Revisited, Roger J. Miner
NYLS Law Review
No abstract provided.
Confronting The Myth Of State Court Class Action Abuses Through An Understanding Of Heuristics And A Plea For More Statistics, Patricia W. Moore
Confronting The Myth Of State Court Class Action Abuses Through An Understanding Of Heuristics And A Plea For More Statistics, Patricia W. Moore
Faculty Articles
The Supreme Court heard six cases involving class actions this term. One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time. Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" justified removal of the case (which was based on state law and filed in state court) to federal court.
The charge of a "flood" of "abusive state court class actions" echoed the same rhetoric that CAFA's supporters used a decade ago in their ultimately successful efforts to …
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra
Faculty Articles
The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …
The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green
Faculty Scholarship
In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum
Faculty Scholarship
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of …
Judging The Flood Of Litigation, Marin K. Levy
Judging The Flood Of Litigation, Marin K. Levy
Faculty Scholarship
The Supreme Court has increasingly considered a particular kind of argument: that it should avoid reaching decisions that would “open the floodgates of litigation.” Despite its frequent invocation, there has been little scholarly exploration of what a floodgates argument truly means, and even less discussion of its normative basis. This Article addresses both subjects, demonstrating for the first time the scope and surprising variation of floodgates arguments, as well as uncovering their sometimes-shaky foundations. Relying on in-depth case studies from a wide array of issue areas, the Article shows that floodgates arguments primarily have been used to protect three institutions: …
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …
United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young
United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young
Faculty Scholarship
The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …
More Law Than Politics: The Chief, The “Mandate,” Legality, And Statesmanship, Neil S. Siegel
More Law Than Politics: The Chief, The “Mandate,” Legality, And Statesmanship, Neil S. Siegel
Faculty Scholarship
This chapter in a forthcoming book on NFIB v. Sebelius asks whether the various parts of Chief Justice Roberts’s opinion on the minimum coverage provision are legally justifiable. I focus on what Roberts decided, not why he decided it that way.
Law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to …
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
Faculty Scholarship
No abstract provided.
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs
Faculty Scholarship
The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.
If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant¹s only remedy is a transfer motion under § 1404.
Both sides are wrong. Forum-selection …
The Gravitational Force Of Originalism, Randy E. Barnett
The Gravitational Force Of Originalism, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies …
“Fine Distinctions” In The Contemporary Law Of Insider Trading, Donald C. Langevoort
“Fine Distinctions” In The Contemporary Law Of Insider Trading, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper—a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these—particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding …
State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck
State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck
Georgetown Law Faculty Publications and Other Works
In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.
The concerns that …
The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman
The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman
Journal Articles
This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the …
Court-Packing And Compromise, Barry Cushman
Court-Packing And Compromise, Barry Cushman
Journal Articles
President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than …
Supreme Court Of The United States, October Term 2013 Preview, Georgetown University Law Center, Supreme Court Institute
Supreme Court Of The United States, October Term 2013 Preview, Georgetown University Law Center, Supreme Court Institute
Supreme Court Overviews
No abstract provided.
A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler
A Constitutional Right To Safe Foster Care - Time For The Supreme Court To Pay Its I.O.U., Daniel L. Skoler
Pepperdine Law Review
No abstract provided.
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk
Pepperdine Law Review
No abstract provided.
Indopco, Inc. V. Commissioner: National Starch Isn't The Only One "Stiffed" By The Supreme Court's Decision, Jeffrey Gates Davis
Indopco, Inc. V. Commissioner: National Starch Isn't The Only One "Stiffed" By The Supreme Court's Decision, Jeffrey Gates Davis
Pepperdine Law Review
No abstract provided.
The Punishment Need Not Fit The Crime: Harmelin V. Michigan And The Eigth Amendment, Scott K. Petersen
The Punishment Need Not Fit The Crime: Harmelin V. Michigan And The Eigth Amendment, Scott K. Petersen
Pepperdine Law Review
No abstract provided.
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso
Pepperdine Law Review
No abstract provided.
Contingency Enhancements In Attorney Fee Cases: City Of Burlington V. Dague, The End Of Merit Systems Protection Board's Struggle To Understand And Apply Delaware Valley Ii , Cameron P. Quinn, Katharine A. Klos
Contingency Enhancements In Attorney Fee Cases: City Of Burlington V. Dague, The End Of Merit Systems Protection Board's Struggle To Understand And Apply Delaware Valley Ii , Cameron P. Quinn, Katharine A. Klos
Pepperdine Law Review
No abstract provided.
How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers
How Long Can This Go On? The Controversy Over The Application Of The Statute Of Limitations To S Corporations And Their Shareholders, J. Marcus Sommers
Pepperdine Law Review
No abstract provided.
Substance And Method In The Year 2000, Akhil Reed Amar
Substance And Method In The Year 2000, Akhil Reed Amar
Pepperdine Law Review
No abstract provided.
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Pepperdine Law Review
No abstract provided.