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Articles 1 - 30 of 58
Full-Text Articles in Law
The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson
The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson
Pepperdine Law Review
The Supreme Court is one of our most precious institutions. However, for the last few years, American confidence in the Court has dropped to a new low. Less than 40% of Americans have confidence in the Court and its decisions. Recent revelations regarding luxury trips, gifts, and exclusive access for certain individuals to the Justices have raised questions about whether the Justices understand their basic ethical duties and can act in a fair and impartial manner. As commentators have noted, the Supreme Court stood as the only court in America that was not governed by an ethical code. The question …
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
Seattle University Law Review
After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Seattle University Law Review
Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …
Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez
Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez
Seattle University Law Review
The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
Dickinson Law Review (2017-Present)
No abstract provided.
Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg
Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg
St. Mary's Law Journal
Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …
“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom
“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom
St. Mary's Law Journal
Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.
The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …
The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker
Indiana Law Journal
In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch
stack of paper. But in the same year, federal administrative agencies promulgate
80,000 pages of regulations—which makes an eleven-foot paper pillar. This move
toward electorally unaccountable administrators deciding federal policy began in
1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than
elected representatives, unelected bureaucrats increasingly make the vast majority
of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three
areas: delegation, deference, and independence.
This trend is about to be reversed. In the coming years, Congress will …
The Future Of Pretrial Detention In A Criminal System Looking For Justice, Gabrielle Costa
The Future Of Pretrial Detention In A Criminal System Looking For Justice, Gabrielle Costa
Journal of Race, Gender, and Ethnicity
No abstract provided.
Ethical Considerations For Attorneys Researching Jurors On The Internet, Anthony M. Lapinta
Ethical Considerations For Attorneys Researching Jurors On The Internet, Anthony M. Lapinta
Journal of Race, Gender, and Ethnicity
No abstract provided.
Arbitration And The Federal Balance, Alyssa King
Arbitration And The Federal Balance, Alyssa King
Indiana Law Journal
Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet
Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet
Articles & Chapters
In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.
This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
St. Mary's Journal on Legal Malpractice & Ethics
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …
The Pro Bono Collaborative Project Spotlight: Increasing Access To Justice Just Got A Little Easier In Rhode Island 10-05-2017, Roger Williams University School Of Law
The Pro Bono Collaborative Project Spotlight: Increasing Access To Justice Just Got A Little Easier In Rhode Island 10-05-2017, Roger Williams University School Of Law
Pro Bono Collaborative Staff Publications
No abstract provided.
The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski
The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski
Touro Law Review
No abstract provided.
Chaidez V. United States - You Can't Go Home Again, Aram A. Gavoor, Justin M. Orlosky
Chaidez V. United States - You Can't Go Home Again, Aram A. Gavoor, Justin M. Orlosky
Notre Dame Journal of Law, Ethics & Public Policy
This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface.
A Rhetorician’S Practical Wisdom, Linda L. Berger
A Rhetorician’S Practical Wisdom, Linda L. Berger
Scholarly Works
For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.
For Jack, the essence of a …
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens
St. Mary's Journal on Legal Malpractice & Ethics
When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …
Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock
Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock
Charles W. Murdock
“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.
The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
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.
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Articles
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …
From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart
From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart
Melissa R Hart
No abstract provided.
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott
St. Mary's Law Journal
Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …
The Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro
The Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro
All Faculty Scholarship
In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices’ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.
Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even …
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
St. Mary's Law Journal
The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …
Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman
Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman
Book Chapters
Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.
One of the main arguments for term limits is, in essence, that the Supreme Court should …
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
St. Mary's Law Journal
William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …
The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein
The Story Of Upjohn Co. V. United States: One Man's Journey To Extend Lawyer-Client Confidentiality, And The Social Forces That Affected It, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
The attorney-client privilege protects information a client provides an attorney in confidence for the purpose of securing legal advice. But suppose the client is not a person but a corporation and can only speak through its agents and employees. What then are the contours of the privilege? If the corporation's attorney asks an employee for information relating to pending litigation or other legal matters, is the conversation privileged? Some courts said that no communications to a corporate attorney were privileged unless they came from members of the corporate control group, loosely those people who had authority to direct the attorney's …
Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg
Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
This essay is about the permanent damage to the Supreme Court and to the country that may occur if the current approach to judicial appointments continues, and offers an approach to the nomination and confirmation of Supreme Court justices that will help put the Court back in its proper place - out of the eye of the elective political storm.