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Articles 1 - 30 of 49
Full-Text Articles in Law
Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer
Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer
William & Mary Bill of Rights Journal
Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing …
In Defense Of Federalism: The Need For A Federal Institutional Defender Of State Interests, Kory A. Atkinson
In Defense Of Federalism: The Need For A Federal Institutional Defender Of State Interests, Kory A. Atkinson
Northern Illinois University Law Review
In Ring v. Arizona, 536 U.S. 584 (2002), the United States Supreme Court struck down the state of Arizona's death penalty procedure as violative of the Sixth Amendment's right to trial by jury. The Ring case is noteworthy because the Supreme Court upheld the identical procedure under the same constitutional provision twelve years earlier in Walton v. Arizona, 497 U.S. 639 (1990). The Ring case raises a serious constitutional issue because the high Court reaffirmed its decision upholding Arizona's death penalty procedure twice during those twelve years. The issue is this: what recourse does the state of Arizona have against …
The 2002 Supreme Court Decisions: Did They Leave Enough Of Apprendi To Effectively Protect Criminal Defendants?, Charlotte Leclercq
The 2002 Supreme Court Decisions: Did They Leave Enough Of Apprendi To Effectively Protect Criminal Defendants?, Charlotte Leclercq
Northern Illinois University Law Review
This comment explores the true impact of the 2000 landmark decision, Apprendi v. New Jersey, in which the United States Supreme Court determined that any fact that increases a criminal defendant's sentence beyond the statutory maximum has to be submitted to a jury and proven beyond a reasonable doubt. At the time, the decision appeared to be a triumph for the procedural due process rights of defendants. However the opinion of the majority, as well as those of the concurrence and dissents, left the actual effect of the decision subject to considerable debate among courts and commentators. In 2002 the …
Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch
Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch
University of Michigan Journal of Law Reform
The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been a …
Words To The Wise: David C. Frederick's Supreme Court And Appellate Advocacy, Mark R. Kravitz
Words To The Wise: David C. Frederick's Supreme Court And Appellate Advocacy, Mark R. Kravitz
The Journal of Appellate Practice and Process
No abstract provided.
Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn
Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn
Michigan Telecommunications & Technology Law Review
Eldred v. Ashcroft offered the Supreme Court broad issues about the scope of Congress's constitutional power to legislate in the area of intellectual property. In 1998, Congress added twenty years to the term of all copyrights, both existing and future copyrights. But for this term extension, works created during the 1920s and 1930s would be entering the public domain. Now such works will remain under copyright until 2018 and beyond. Eldred v. Ashcroft rejected two challenges to the constitutionality of the copyright extension. The first challenge contended that Congress had exceeded its power to grant copyrights for "limited Times" in …
Verdugo In Cyberspace: Boundaries Of Fourth Amendment Rights For Foreign Nationals In Cybercrime Cases, Stewart M. Young
Verdugo In Cyberspace: Boundaries Of Fourth Amendment Rights For Foreign Nationals In Cybercrime Cases, Stewart M. Young
Michigan Telecommunications & Technology Law Review
This Comment examines the current legal framework governing Fourth Amendment rights for foreign nationals accused of committing crimes within the United States. Over the past three years, federal courts have tried several cases charging foreign nationals with committing crimes through the use of the Internet; these cases demonstrate a lack of clarity in the standard for warrant requirements regarding these searches. Utilizing these cases, this Comment creates a hypothetical case that presents the issues of Fourth Amendment rights for foreign nationals and seeks to determine how such a question should be answered. It advocates the clear application of United States …
Section 2: Judicial Confirmation Process, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: Judicial Confirmation Process, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 1: Moot Court, Locke V. Davey, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court, Locke V. Davey, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: First Amendment & Election Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: First Amendment & Election Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Gay Rights After Lawrence, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 7: Federalism In The Rehnquist Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism In The Rehnquist Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 10: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Section 10: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 8: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 8: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 9: Looking Ahead, Institute Of Bill Of Rights Law, William & Mary Law School
Section 9: Looking Ahead, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Border Patrol, Carl E. Schneider
Border Patrol, Carl E. Schneider
Articles
Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice, what …
Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia
Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia
University of Michigan Journal of Law Reform
Beginning with the September 11, 2001 ("9/11 ") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL-CIO s hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back pay …
Attitudes About Attitudes, Michael J. Gerhardt
Attitudes About Attitudes, Michael J. Gerhardt
Faculty Publications
No abstract provided.
Arising Under Jurisdiction And Uniformity In Patent Law, Christopher A. Cotropia
Arising Under Jurisdiction And Uniformity In Patent Law, Christopher A. Cotropia
Michigan Telecommunications & Technology Law Review
The law governing the Federal Circuit's appellate jurisdiction was brought into question in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Federal Circuit's appellate jurisdiction over Vornado's appeal rested solely on Vornado's counterclaim alleging patent infringement by Holmes. Holmes's complaint sought a declaratory judgment of no trade dress infringement and did not include any patent law claims. While the Federal Circuit found appellate jurisdiction over Vornado's appeal based on the counterclaim of patent infringement, the Supreme Court disagreed. The Court focused on the language in 35 U.S.C. § 1338(a), which defines the Federal Circuit's appellate jurisdiction by the statute's …
Congress And The Making Of The Second Rehnquist Court, Neal Devins
Congress And The Making Of The Second Rehnquist Court, Neal Devins
Faculty Publications
No abstract provided.
The Rehnquist Court And The Devolution Of The Right To Privacy, Scott P. Johnson, Robert M. Alexander
The Rehnquist Court And The Devolution Of The Right To Privacy, Scott P. Johnson, Robert M. Alexander
West Virginia Law Review
No abstract provided.
Federalism And Formalism, Allison H. Eid
Federalism And Formalism, Allison H. Eid
William & Mary Bill of Rights Journal
Many commentators have criticized the Supreme Court's New Federalism decisions as "excessively formalistic. " In this Article, Professor Eid argues that this "standard critique" is wrong on both a descriptive and normative level. Descriptively, she argues that the standard critique mistakenly downplays the extent to which the New Federalism decisions consider the values that federalism serves, and contends that they employ the same sort of formalism/functionalism blend that is found in the Court's separation of powers jurisprudence. Professor Eid then contends that the standard critique's normative prescription - a case-by-case balancing test that would weigh the federal interest against the …
Treating The Pen And The Sword As Constitutional Equals: How And Why The Supreme Court Should Apply Its First Amendment Expertise To The Great Second Amendment Debate, David G. Browne
William & Mary Law Review
No abstract provided.
Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer
Disabiling The Ada: Essences, Better Angels, And Unprincipled Neutrality Claims, Aviam Soifer
William & Mary Law Review
No abstract provided.
Expressivism, Empathy And Equality, Rachel D. Godsil
Expressivism, Empathy And Equality, Rachel D. Godsil
University of Michigan Journal of Law Reform
In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Marquette Intellectual Property Law Review
Mr. Burk illustrates that federal courts have diverged along industry-specific paths when deciding patent cases. Burk highlights courts' disparate treatment of the biotechnology and computer software industries within the uniform patent statute. Due to industries' differing requirements for innovation and development, Professor Burk argues that the currently general patent statute and its incentive to innovate may be improved by tailoring it to specific industries. Burk creates a dialogue on what kinds of statutory schemes promote innovation. Citing the Supreme Court's statement in Diamond v. Chakrabarty that the patent statute is meant to cover anything under the sun made by man, …
Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell
Covering Women And Violence: Media Treatment Of Vawa's Civil Rights Remedy, Sarah F. Russell
Michigan Journal of Gender & Law
This Article analyzes how newspapers described and characterized the civil rights provision over the past decade and shaped the public discourse about the law. The author examines how lower federal courts, and eventually the Supreme Court, categorized the VAWA remedy when deciding whether Congress had acted within its commerce powers. After considering why there may have been resistance in the press and in the courts to VAWA's categorization of violence against women as a civil rights issue, the author concludes by examining the remedies that have been introduced at the state and local level for victims of gender-motivated violence, and …
Rethinking The Death Penalty: Can We Define Who Deserves Death?, Martin Leahy, Robert Blecker, William M. Erlbaum, Jeffrey Fagan, Norman Greene, Jeffrey Kirchmeier, David Von Drehle
Rethinking The Death Penalty: Can We Define Who Deserves Death?, Martin Leahy, Robert Blecker, William M. Erlbaum, Jeffrey Fagan, Norman Greene, Jeffrey Kirchmeier, David Von Drehle
Articles & Chapters
No abstract provided.