Law Commons^™

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Articles

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Articles

It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

Ascertainability: Prose, Policy, And Process, Rhonda Wasserman

Articles

One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like …

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 …

The Fourth Amendment And Terrorism, John Burkoff

Articles

The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that …

'A Flame Of Fire': The Fourth Amendment In Perilous Times, John Burkoff

Articles

The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our …

Light On A Darkling Plain: Intercircuit Conflicts In The Perspective Of Time And Experience, Arthur D. Hellman

Articles

The time has long passed when the Supreme Court resolved every intercircuit conflict properly brought before it in a petition for certiorari. Is that a problem we should be concerned about? Three decades ago, Congress asked the Federal Judicial Center, the research arm of the federal judiciary, to conduct a study to ascertain “the number and frequency of conflicts among the judicial circuits … that remain unresolved because they are not heard by the Supreme Court.” Congress further requested that the Center determine the extent to which the unresolved conflicts are “intolerable.” The Center asked me to design and conduct …

Error Correction, Lawmaking, And The Supreme Court’S Exercise Of Discretionary Review, Arthur D. Hellman

Articles

Controversies involving the United States Supreme Court generally center on the content of Court’s decisions, but in recent years, much attention has focused on the Court’s processes – in particular, two very different aspects of the Court’s modes of doing business. At one end of the spectrum, the number of cases receiving plenary consideration – full briefing, oral argument, and (almost invariably) a signed opinion – has shrunk to levels lower than any since the Civil War. At the other end, the Court has effectively resolved many high-profile disputes through unexplained orders granting or denying emergency relief in cases in …

The Business Of The Supreme Court Under The Judiciary Act Of 1925: The Plenary Docket In The 1970'S, Arthur D. Hellman

Articles

During the last decade, the Supreme Court has been deciding 65 to 70 cases a Term after oral argument. That represents a sharp decline from the 1970s and 1980s, the era of the Burger Court, when the Court was deciding about 150 cases a Term. The Burger Court’s docket, in turn, reflected a shift from the 1960s, when the docket was smaller. In short, what is “normal” for the plenary docket varies from one era to another. The period of the Burger Court retains a special interest in that regard because that was the only period after World War II …