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Full-Text Articles in Law
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele
Faculty Publications
In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …
Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong
Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong
Faculty Publications
This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faculty Publications
The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Faculty Publications
In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. …
Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone
Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone
Faculty Publications
In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.” This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and …
The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett
The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett
Faculty Publications
This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …
A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker
A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker
Faculty Publications
Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.
The Need For A New National Court, Douglas D. Mcfarland, Thomas E. Baker
The Need For A New National Court, Douglas D. Mcfarland, Thomas E. Baker
Faculty Publications
By any measure, the Supreme Court is tremendously overburdened. Statistics speak clearly on this point; sometimes they shout. After the caseload relief provided by the Judges' Bill, 4 which was passed in I925 and took effect during the I928 Term, the Supreme Court caseload grew slowly for thirty years. Beginning in the I96os, growth sharply accelerated, and during the I970S and I98os, the numbers exploded.