Law Commons^™

En-Gendering Economic Inequality, Michele E. Gilman

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We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

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The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

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With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

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This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay

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Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. …

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele E. Gilman

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This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

Patents At The Supreme Court: It Could Have Been Worse, Gregory Dolin

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In the last few years in particular, the Court has expanded the zone of exclusion from patent eligibility, limited the availability of injunctive relief for patentees whose patents have been adjudged to be valid and infringed, and broadened the scope of the patent exhaustion doctrine. To be sure, not all of the Supreme Court’s decisions were “anti-patent.” Nonetheless, the overall trajectory of the Court’s patent jurisprudence has been toward a narrower set of patent rights. Thus, there was significant trepidation in the patent bar and the academy when the Supreme Court decided to hear three patent cases in the OT …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

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This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

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This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …

Punitive Damages Vs. The Death Penalty: In Search Of A Unified Approach To Jury Discretion And Due Process Of Law, José F. Anderson

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The role of the jury in awarding monetary damages to plaintiffs in a wide range of civil cases has captured the attention of the media, contemporary non-fiction writers, and reform-minded politicians in recent years. Particular attention has been focused on huge jury awards, which has led many commentators to criticize the wisdom of permitting juries to move so much money from one place to another. Although the right to a jury trial, and with it the exercise of broad judicial discretion, is constitutionally based, many reform efforts have moved toward removing juries from cases both as to the subject matter …

The Viability Of Multi-Party Litigation As A Tool For Social Engineering Six Decades After The Restrictive Covenant Cases, José F. Anderson

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Six decades ago, a group of lawyers sought ways to overturn the racially restrictive covenants that were common across the United States. These restrictions on integrated neighborhoods were the first legal battleground of the civil rights movement using the courts of civil justice to remove what many thought were immoral restrictions on the rights of free people. The most famous of those cases was Shelley v. Kraemer, but the doctrine that emerged from that particular case was actually a series of separate, multi-party lawsuits in various locations, using teams of lawyers acting in concert with each other to achieve justice. …

Ten Years After: Bartnicki V. Vopper As Laboratory For First Amendment Advocacy And Analysis, Eric Easton

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How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to …

Maryland Lawyers Who Helped Shape The Constitution: Father Of Freedom - Charles Hamilton Houston, José F. Anderson

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For most Americans, Charles Hamilton Houston is barely a footnote in history. Born in 1896, this Phi Beta Kappa graduate of Amherst College and Harvard educated African-American lawyer went on to win eight of nine cases in the United States Supreme Court. He designed the legal strategy for the historic Brown v. Board of Education 347 U.S. 483 (1954). He was the first African American to be elected to the Harvard Law Review and the first to earn the degree Doctor of Juridical Science Degree

By 1950 he would be laid to rest, exhausted by his brutal multi-state law reform …

Astrachan And Easton: Fight Wikileaks Case In Court, Not In Cyberspace, James B. Astrachan, Eric Easton

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No abstract provided.

Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay

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This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the …

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

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Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

Obama's Second Chance To Make History, José F. Anderson

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This short article provides a view of the circumstances and issues surrounding President Obama's nomination of federal circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

With President Barack Obama's nomination of federal circuit Judge Sonia Sotomayor to the Supreme Court, his judicial appointment team has been presented with an early introduction to what has become one the most challenging areas of presidential governance over the last several decades.

The nominations to the nation's highest court have generated controversies going back to Ronald Reagan's failed attempt to elevate the highly controversial federal Judge Robert Bork to the court in the …

A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric Easton

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In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of …

Under-The-Table Overruling, Christopher J. Peters

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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Justiciable Generalized Grievances, Kimberly L. Wehle

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The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton

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Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …

Pro-Gun Scholars Twist Constitution, Kenneth Lasson

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Earlier this year, the Court of Appeals for the District of Columbia became the first federal tribunal to strike down a local gun-control law, holding that the Founding Fathers would have allowed all private citizens to arm themselves.

The Press As An Interest Group: Mainstream Media In The United States Supreme Court, Eric Easton

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There can be little doubt that the institutional press is an interest group to be reckoned with in the Supreme Court, its aversion to such a designation notwithstanding. Over the past century, and especially since 1964, the press has secured for itself the greatest legal protection available anywhere in the world. While some of that protection has come from Congress, by far the greatest share has come from the Supreme Court's expansive interpretation of the First Amendment's Press Clause. Although the role of the press in American politics has been studied extensively for nearly two centuries, the role of the …

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

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In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.

How Antidiscrimination Law Learned To Live With Racial Inequality, Matthew Lindsay

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This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for …

That Pernicious Pop-Up, The Prima Facie Case, Michael Hayes

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This article first explains the role the prima facie case has played in discrimination cases, from its creation in McDonnell Douglas through the Supreme Court's decisions in Aikens and Reeves, up to the application of Reeves by lower courts in the past several years. Next, this article focuses on Reeve's identification of "strength of the prima facie case" as a factor to be considered on summary judgment, and discusses why it would be unwise and unworkable to interpret the words "prima facie case" in that factor as having the same meaning as the "prima facie case" proved in the first …

The Irrational Supreme Court, Michael I. Meyerson

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Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

The Great Writ Of Incoherence: An Analysis Of Supreme Court's Rulings On "Enemy Combatants", Gregory Dolin

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On June 28, 2004, the United States Supreme Court released its much awaited decisions in the cases posing a challenge to the Executive's self-professed authority to detain and indefinitely hold individuals designated as "enemy combatants." The cases arose from the "war on terrorism" that was launched after the attack on the United States on September 11, 2001. When each decision is looked at individually, the result seems to make sense and, given the outcome (affording detainees rights of judicial review), feels good. Yet when these decisions are looked at collectively, it is hard to believe that they were issued by …

Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton

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No abstract provided.

Gender Bias: Continuing Challenges And Opportunities, Rebecca Korzec

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In 1873 the U.S. Supreme Court denied Myra Bradwell the right to practice law, holding "the paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother." Now, just slightly more a century later, two women sit on the Supreme Court, and almost half of all law students and law school faculty are women.