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Full-Text Articles in Law
Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder
Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder
Faculty Publications
"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …
Crosses And Culture: State-Sponsored Religious Displays In The Us And Europe, Mark L. Movsesian
Crosses And Culture: State-Sponsored Religious Displays In The Us And Europe, Mark L. Movsesian
Faculty Publications
This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious “neutrality,” but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favor a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, by contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give “preponderant visibility” to the symbols of …
Obligatory Health, Noa Ben-Asher
Obligatory Health, Noa Ben-Asher
Faculty Publications
The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …
The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar
The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar
Faculty Publications
Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …