Law Commons^™

The Right To A Jury Decision On Questions Of Fact Under The Seventh Amendment, Paul F. Kirgis

Faculty Law Review Articles

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on 'functional considerations" in assigning a question of patent claim construction to the judge. In …

Who Was William Marbury?, David F. Forte

Law Faculty Articles and Essays

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Western Justice, Richard B. Collins

Publications

No abstract provided.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

The Dimension Of The Supreme Court, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …

Unpatriotic Acts: An Introduction, Sadiq Reza

Faculty Scholarship

John Walker Lindh. Zacarias Moussaoui. Jose Padilla. Richard Reid. Who reading these lines does not instantly recognize the names of these men? Or at least their assigned noms de guerre: American Taliban, 20th hijacker, dirty bomber, shoe bomber. For two and a half years these names and others have flitted through our daily copies of The New York Times like shadow characters in a play, along with black-and-white photographs underneath which black-and-white text tells us of their alleged (and sometimes proven) wrongdoing and the latest developments in their tribulations (and sometimes trials) with our government. But the men themselves are …

Cross-Burning Case Explores Free-Speech Controversy, John G. Douglass

Law Faculty Publications

Virginia v. Black was Smolla's first oral argument before the Supreme Court, but his appearance on the national stage of First Amendment controversy was nothing new. Among academics, Smolla has long been regarded as a leading First Amendment voice. His publications include a widely-used casebook, top law review articles, plays, short stories, a forthcoming novel, and a nonfiction work that became the script for a popular movie. As a litigator of two decades experience, he has argued First Amendment appeals in dozens of state and federal courts around the nation. Early in his career, he had a knack for finding …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman

All Faculty Scholarship

Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …

The Diversity Dichotomy: The Supreme Courts Reticence To Give Race A Capital R, Tanya M. Washington

Faculty Publications By Year

No abstract provided.

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Joseph Hodges Choate (1832-1917), Janet Butler Munch

Publications and Research

Joseph Hodges Choate (1832-1917) was a trial lawyer and diplomat.

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.

Gifts, Gafts And Gefts: The Income Tax Definition And Treatment Of Private And Charitable 'Gifts' And A Principled Policy Justification For The Exclusion Of Gifts From Income, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Gifts have been given special treatment by the income tax laws since the first post-16th Amendment tax statute was adopted in 1913. The determination of how the income tax law should treat gifts raises a number of issues. For example: should gifts be given special treatment? If so, what should qualify as a gift? Should gifts to a private party be taxable to the donee? Should gifts to a private party be deductible by the donor? Should the donee's basis in a gift of property be determined by reference to the basis that the donor had, and should any modifications …

David E. Feller: The Happy Warrior, Theodore J. St. Antoine

Articles

Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …

Justice Lewis F. Powell, Jr. And The Counterrevolution In The Federal Securities Laws, Adam C. Pritchard

Articles

The confirmation of Lewis F. Powell, Jr., to the Supreme Court coincided with a dramatic shift in the Court's approach to securities law. This Article documents Powell's influence in changing the Court's direction in securities law. Powell's influence was the product of his extensive experience with the securities laws as a corporate lawyer, which gave him much greater familiarity with that body of law than his fellow Justices had. That experience also made him skeptical of civil liability, particularly class and derivative actions. Powell's skepticism led him to interpret the securities law in a consistently narrow fashion to reduce liability …

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is …

Recent Cases: Appellate Procedure - Force Of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts The Theory Of Earlier Decisions, Robert J. Jackson Jr.

Faculty Scholarship

The nation's courts of appeals have struggled to devise a coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court.' When the Court directly overrules a decision of a court of appeals, it is agreed that the overruled decision loses the force of law. But when a Supreme Court opinion disfavors a circuit's jurisprudential theory, the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently, in Miller v. Gammie (Gammie II),2 the United States Court of Appeals for the Ninth Circuit, sitting en banc, adopted an …

Supreme Court Review Of State-Court Determinations Of State Law In Constitutional Cases, Henry Paul Monaghan

Faculty Scholarship

The decision in Bush v. Gore and particularly Chief Justice Rehnquist's concurring opinion were widely criticized for their unwarranted intrusion upon the "authoritative" status of the Florida Supreme Court in determining the meaning of Florida election law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (t₁) and the claim is that the state court materially and impermissibly departed from that law at a …

The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman

Articles

The title of this essay is a somewhat feeble use of an unoriginal pun.' I am not talking about the doctrine of the stream, but about the stream of the doctrine. That is, my principal subject is not the "stream of commerce doctrine," but rather the historical development of the doctrine governing Congress's power under the Commerce Clause in the twentieth century, and especially in the years centering on the New Deal. My basic thesis is this: Although the doctrine developed rapidly in the New Deal era, there were no major discontinuities in it. That does not mean that it …

Going To Pot, Carl E. Schneider

Articles

In several earlier columns, I suggested that judges are usually poorly placed to make good biomedical policy, not least because the law so rarely offers them direct and cogent guidance. Recently, the U.S. Court of Appeals for the Ninth Circuit proffered a new example of this old problem. In 1996, California's voters approved Proposition 215. Its "Compassionate Use Act of 1996" provided -that a patient "who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" committed no crime.

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …