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Articles 1 - 11 of 11
Full-Text Articles in Law
The Nagging In Our Ears And Original Public Meaning, Perry Dane
The Nagging In Our Ears And Original Public Meaning, Perry Dane
Marquette Law Review
The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views— theories of “original public meaning”—that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.
Oklahoma V. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, And The Fundamental Freedom Of Sovereign Nations, Michael D.O. Rusco
Oklahoma V. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, And The Fundamental Freedom Of Sovereign Nations, Michael D.O. Rusco
Marquette Law Review
In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Marquette Law Review
Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …
How Circuits Can Fix Their Splits, Wyatt G. Sassman
How Circuits Can Fix Their Splits, Wyatt G. Sassman
Marquette Law Review
The desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts …
Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard
Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard
Marquette Law Review
The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …
A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers
A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers
Marquette Law Review
The Free Exercise Clause was enacted to protect diverse modes of religious
practice. Yet certain expressions of free exercise have entailed concomitant
harm to those outside the religious community, especially LGBTQ persons.
This trend has been acutely present in the recent onslaught of wedding-vendor
cases: LGBTQ persons seek the enforcement of statutorily protected rights,
while religious objectors seek refuge from state intrusion under constitutional
shelter. Consequently, wedding-vendor cases present an area of law in which
free-exercise jurisprudence and anti-discrimination jurisprudence have been
clashing.
However, despite the primacy of religious freedom and equal protection in
American jurisprudence, courts analyze wedding-vendor cases …
Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone
Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone
Marquette Law Review
This Article studies statutory interpretation as it is practiced in the federal
courts of appeal. Much of the academic commentary in this field focuses on the
Supreme Court, which skews the debate and unduly polarizes the field. This
Article investigates more broadly by looking at the seventy-two federal
appellate cases that cite King v. Burwell in the two years after the Court issued
its decision. In deciding that the words “established by the State” encompass
a federal program, the Court in King reached a pragmatic and practical result
based on statutory scheme and purpose at a fairly high level of …
"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal
Marquette Law Review
The Article looks at the first article of compact of the Northwest Ordinance,
the religious liberty guarantee: “No person . . . shall ever be molested on
account of his mode of worship or religious sentiments . . . .” Congress
provided that the Northwest Ordinance articles of compact would “forever
remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,
Chief Justice Roger Taney declared the articles of compact to be no longer in
force.
In evaluating Chief Justice Taney’s reasoning, the question posed at the
dawn of the 20th Century by historian Professor Andrew McLaughlin …
Supreme Verbosity: The Roberts Court's Expanding Legacy
Supreme Verbosity: The Roberts Court's Expanding Legacy
Marquette Law Review
The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.
It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …
Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman
Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman
Marquette Law Review
Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys’ relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.
Brandeis: The Legacy Of A Justice, Joel K. Goldstein, Charles A. Miller
Brandeis: The Legacy Of A Justice, Joel K. Goldstein, Charles A. Miller
Marquette Law Review
One hundred years after his appointment, Justice Louis D. Brandeis remains a distinctive and unusually influential figure in the history of the Supreme Court. Unlike many other great justices, Brandeis is not remembered for his majority opinions. Rather, what is distinctive about him is the extent to which so many of his dissents and concurring opinions continue to influence justices more than 75 years after he retired and a century after he joined the Court. Whereas justices cite majority opinions for their value as legal precedents, they invoke the dissents and concurrences of a retired justice due to the power …