Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Michigan Law School (16)
- William & Mary Law School (13)
- University of Baltimore Law (7)
- University of Colorado Law School (6)
- New York Law School (5)
-
- Boston University School of Law (2)
- Cleveland State University (2)
- Columbia Law School (2)
- Georgetown University Law Center (2)
- Roger Williams University (2)
- St. Mary's University (2)
- University of Dayton (2)
- University of Miami Law School (2)
- University of Pennsylvania Carey Law School (2)
- American University Washington College of Law (1)
- Georgia State University College of Law (1)
- Saint Louis University School of Law (1)
- Seattle University School of Law (1)
- Texas A&M University School of Law (1)
- The Catholic University of America, Columbus School of Law (1)
- The University of Akron (1)
- UIC School of Law (1)
- University of Missouri-Kansas City School of Law (1)
- University of Nebraska - Lincoln (1)
- Valparaiso University (1)
- Washington University in St. Louis (1)
- Washington and Lee University School of Law (1)
- Wayne State University (1)
- Yeshiva University, Cardozo School of Law (1)
- Keyword
-
- United States Supreme Court (28)
- Supreme Court (15)
- Race and law (7)
- Congress (6)
- Discrimination (6)
-
- Voting Rights Act (5)
- African Americans (4)
- Constitutional violations (4)
- DOMA (4)
- Federal Rules of Civil Procedure (4)
- Preclearance (4)
- Racial discrimination (4)
- Remedial regimes (4)
- Shelby County v. Holder (4)
- Voting (4)
- Voting practices (4)
- Department of Justice (3)
- Deterrence (3)
- Employment discrimination (3)
- Fifth Amendment (3)
- Law reform (3)
- Stare decisis (3)
- United States Constitution 1st Amendment (3)
- Affirmative action (2)
- Affordable Care Act (2)
- Antitrust (2)
- Charging (2)
- Civil procedure (2)
- Civil rights (2)
- Constitutional Law (2)
- Publication
-
- Articles (17)
- All Faculty Scholarship (10)
- Supreme Court Preview (7)
- Publications (6)
- Faculty Publications (5)
-
- Faculty Scholarship (5)
- Other Publications (3)
- Articles & Chapters (2)
- Educational Leadership Faculty Publications (2)
- Faculty Articles (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Law Faculty Articles and Essays (2)
- Law Faculty Scholarship (2)
- Scholarly Articles (2)
- Akron Law Faculty Publications (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Book Chapters (1)
- Faculty Online Publications (1)
- Faculty Publications By Year (1)
- Faculty Works (1)
- Law Faculty Publications (1)
- Law Faculty Research Publications (1)
- Nebraska College of Law: Faculty Publications (1)
- Popular Media (1)
- Scholarship@WashULaw (1)
- Seattle University Law Review Online (1)
- UIC Law Open Access Faculty Scholarship (1)
Articles 1 - 30 of 80
Full-Text Articles in Law
Judge Pauley’S Opinion In Clapper: Reset Button For Bulk Collection Debate?, Peter Margulies
Judge Pauley’S Opinion In Clapper: Reset Button For Bulk Collection Debate?, Peter Margulies
Law Faculty Scholarship
This article was originally found in Lawfare, available here: https://www.lawfareblog.com/judge-pauleys-opinion-clapper-reset-button-bulk-collection-debate
Update: The Supreme Court And Affirmative Action, Charles J. Russo
Update: The Supreme Court And Affirmative Action, Charles J. Russo
Educational Leadership Faculty Publications
Few issues in education have generated more ongoing controversy during the last half-century than affirmative action. Supporters view it as a positive step to eliminate the effects of past discrimination. Conversely, critics speak of race-conscious policies that they maintain create greater problems by failing to address how granting preferences today remedies past inequities.
Although typically more contentious in higher education, affirmative action is the centerpiece of this column because of the impact that race-conscious policies can have on K–12 schools.
Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier
Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier
Law Faculty Articles and Essays
This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is …
The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein
The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein
Faculty Scholarship
On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.
Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 7: Abortion, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Abortion, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 2: Affordable Care Act, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: Affordable Care Act, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Pleading And Access To Civil Justice: A Response To Twiqbal Apologists, A. Benjamin Spencer
Faculty Publications
Professor Stephen Yeazell once wrote, ''A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions."" One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways …
Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz
Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz
Faculty Online Publications
I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about.
Originalism Without Obligation, Gary S. Lawson
Originalism Without Obligation, Gary S. Lawson
Faculty Scholarship
I am truly delighted that Boston University School of Law is hosting a conference on Abner Greene’s Against Obligation1 and Michael Seidman’s On Constitutional Disobedience. 2 Both books launch powerful and much-needed broadsides against the idea of a political obligation to obey the U.S. Constitution, and more generally (whether or not the authors embrace these implications) against the very idea of a political obligation to obey state authorities. I fully agree with both authors that the arguments normally made in favor of a duty of obedience to the Constitution, and by extension to state authorities of any kind, are remarkably …
Post-Sale And Related Distribution Restraints Involving Ip Rights, Herbert J. Hovenkamp
Post-Sale And Related Distribution Restraints Involving Ip Rights, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …
Fifty Years Before Brady, Colin Starger
Fifty Years Before Brady, Colin Starger
All Faculty Scholarship
In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove
Faculty Publications
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …
The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas
The Surprising Role Of Racial Hierarchy In The Civil Rights Jurisprudence Of The First Justice John Marshall Harlan, Davison M. Douglas
Faculty Publications
The first Justice John Marshall Harlan’s status as one of the greatest Supreme Court Justices in American history rests largely upon his civil rights jurisprudence. The literature exploring the nuances of Harlan’s civil rights jurisprudence is vast. Far less attention has been paid to the reasons for Harlan’s strong civil rights views. Developing a rich sense of Harlan’s thinking has been difficult because Harlan did not leave behind a large trove of non-judicial writings. There is, however, a remarkable source of Harlan’s thought that has been largely overlooked by scholars: Harlan’s constitutional law lectures at George Washington Law School of …
If The Supreme Court Listens To Millennials, Same Sex Marriage Will Become Legal, Tanya M. Washington
If The Supreme Court Listens To Millennials, Same Sex Marriage Will Become Legal, Tanya M. Washington
Faculty Publications By Year
No abstract provided.
The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon
The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon
Faculty Publications
In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.
Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …
Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer
Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer
Faculty Publications
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class. " Although this "commonality" requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23 's commonality requirement unsupported by the text of …
Comments On Maryland V. King In 'U.S. Supreme Court To Hear Arguments Over Md. Dna Case: Justices' Decision Will Have National Implications On Future Crime-Fighting Procedures', Colin Starger
All Faculty Scholarship
No abstract provided.
Immigration Consequences To A Charge Of Simple Assault Or Battery, Deborah Gonzalez
Immigration Consequences To A Charge Of Simple Assault Or Battery, Deborah Gonzalez
Law Faculty Scholarship
No abstract provided.
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
All Faculty Scholarship
It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?
This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …
A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger
A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger
All Faculty Scholarship
After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”
This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …
When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl
When Is Finality Final? Second Chances At The Supreme Court, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
Patents At The Supreme Court: It Could Have Been Worse, Gregory Dolin
Patents At The Supreme Court: It Could Have Been Worse, Gregory Dolin
All Faculty Scholarship
In the last few years in particular, the Court has expanded the zone of exclusion from patent eligibility, limited the availability of injunctive relief for patentees whose patents have been adjudged to be valid and infringed, and broadened the scope of the patent exhaustion doctrine. To be sure, not all of the Supreme Court’s decisions were “anti-patent.” Nonetheless, the overall trajectory of the Court’s patent jurisprudence has been toward a narrower set of patent rights. Thus, there was significant trepidation in the patent bar and the academy when the Supreme Court decided to hear three patent cases in the OT …
The Dialectic Of Stare Decisis Doctrine, Colin Starger
The Dialectic Of Stare Decisis Doctrine, Colin Starger
All Faculty Scholarship
In the United States Supreme Court, the concept of stare decisis operates as both metadoctrine and doctrine. On the one hand, stare decisis functions as a generally applicable presumption in favor of adherence to precedent. This presumption is metadoctrinal because it provides a generic argument against overruling that applies independently of the substantive context of any given case. On the other hand, when the Court considers overruling a particularly controversial precedent, it usually weighs the constraining force of stare decisis by invoking factors and tests announced in its own prior caselaw. In other words, the Court has precedent about when …
Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta
Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta
Law Faculty Publications
No abstract provided.
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost
Articles in Law Reviews & Other Academic Journals
In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.
This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …