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Full-Text Articles in Law

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin Jan 2019

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.


The Uncertain Path Of Class Action Law, Sergio J. Campos Jan 2019

The Uncertain Path Of Class Action Law, Sergio J. Campos

Articles

For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This "exceptional" view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, 'functional" view of the class action, one that does not view ...


Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin Jan 2019

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to ...


The New Separability, Lili Levi Jan 2018

The New Separability, Lili Levi

Articles

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Actdoes not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining ...


The Central Claiming Renaissance, Andres Sawicki Jan 2018

The Central Claiming Renaissance, Andres Sawicki

Articles

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn.

The Court's eligibility cases are significant outliers compared to today's run-of-the-mill patent law because claim language plays little role in their analyses. In our modern peripheral claiming system, the claim language is the near exclusive guide to the patent's boundaries. But in its earliest days, our patent system pursued a central claiming approach, in which the inventor's actual work determined the ...


Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin Jan 2018

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Articles

No abstract provided.


Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless Jan 2017

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

Articles

No abstract provided.


Disarming State Action; Discharging State Responsibility, Zanita E. Fenton Jan 2017

Disarming State Action; Discharging State Responsibility, Zanita E. Fenton

Articles

No abstract provided.


Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin Dec 2016

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

Articles

No abstract provided.


Commentary: Exploiting Mixed Speech, Caroline Mala Corbin Jan 2015

Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

Articles

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case ...


Corporate Religious Liberty, Caroline Mala Corbin Jan 2015

Corporate Religious Liberty, Caroline Mala Corbin

Articles

No abstract provided.


The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby Jan 2014

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby

Articles

No abstract provided.


Response: Means, Ends, And Institutions, Charlton C. Copeland Jan 2014

Response: Means, Ends, And Institutions, Charlton C. Copeland

Articles

No abstract provided.


Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby Jan 2013

Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby

Articles

No abstract provided.


Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave Jan 2013

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

Articles

This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.


Beyond Separation In Federalism Enforcement: Medicaid Expansion, Coercion, And The Norm Of Engagement, Charlton C. Copeland Jan 2012

Beyond Separation In Federalism Enforcement: Medicaid Expansion, Coercion, And The Norm Of Engagement, Charlton C. Copeland

Articles

National Federation of Independent Business v. Sebelius may be known, in both the popular and academic commentaries, as the case about the Affordable Care Act's Individual Mandate provision. History may record it as one of the most significant cases in the jurisprudence of cooperative federalism. In invalidating part of the Medicaid Expansion provision, the Roberts Court became the first to invalidate a federal spending statute as unconstitutionally coercive of state governments. This decision has the potential to impact federal-state cooperative arrangements such as No Child Left Behind, and others far beyond the health care context.

This Article argues that ...


Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably Jan 2012

Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably

Articles

Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.

Three basic symptoms of the pathology stand out. First, sleight of hand. The plurality opinion purports to be about an institutional issue-can a state court commit a ...


The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby Jan 2012

The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby

Articles

No abstract provided.


Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack Jan 2011

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

Articles

No abstract provided.


Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin Jan 2010

Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin

Articles

No abstract provided.


Ex Parte Young: Sovereignty, Immunity, And The Constitutional Structure Of American Federalism, Charlton C. Copeland Jan 2009

Ex Parte Young: Sovereignty, Immunity, And The Constitutional Structure Of American Federalism, Charlton C. Copeland

Articles

No abstract provided.


Business As Usual: The Roberts Court's Continued Neglect Of Adequacy And Equity Concerns In American Education, Osamudia R. James Jan 2008

Business As Usual: The Roberts Court's Continued Neglect Of Adequacy And Equity Concerns In American Education, Osamudia R. James

Articles

No abstract provided.


Breaking Free Of Chevron's Constraints: Zuni Public School District No. 89 V. U.S. Department Of Education, Osamudia R. James Jan 2007

Breaking Free Of Chevron's Constraints: Zuni Public School District No. 89 V. U.S. Department Of Education, Osamudia R. James

Articles

No abstract provided.


Professionalism, Oversight, And Institution-Balancing: The Supreme Court's "Second Best" Plan For Political Debate On Television, Lili Levi Jan 2001

Professionalism, Oversight, And Institution-Balancing: The Supreme Court's "Second Best" Plan For Political Debate On Television, Lili Levi

Articles

Televised political debates have become a staple of modern elections. Proponents of open access to such debates argue that third party participation is a democratic necessity. They see as catastrophic the Supreme Court's decision in Arkansas Educational Television Commission v. Forbes, in which a state broadcaster was given the discretion to exclude a minor party candidate from a televised debate so long as the decision was viewpoint-neutral. This Article reads the Court's decision as a functional, "second best" solution that seeks to mediate the expressive and democratic values implicated in both open and closed access models. More generally ...


An Ode To Probable Cause: A Brief Response To Professors Amar And Slobogin, Scott E. Sundby Jan 1998

An Ode To Probable Cause: A Brief Response To Professors Amar And Slobogin, Scott E. Sundby

Articles

No abstract provided.


Everyman's Fourth Amendment: Privacy Or Mutual Trust Between Government And Citizen, Scott E. Sundby Jan 1994

Everyman's Fourth Amendment: Privacy Or Mutual Trust Between Government And Citizen, Scott E. Sundby

Articles

No abstract provided.


Unrightable Wrongs: The Rehnquist Court, Civil Rights, And An Elegy For Dreams, D. Marvin Jones Jan 1990

Unrightable Wrongs: The Rehnquist Court, Civil Rights, And An Elegy For Dreams, D. Marvin Jones

Articles

No abstract provided.


A Return To Fourth Amendment Basics: Undoing The Mischief Of Camara And Terry, Scott E. Sundby Jan 1988

A Return To Fourth Amendment Basics: Undoing The Mischief Of Camara And Terry, Scott E. Sundby

Articles

No abstract provided.


The Felony-Murder Rule: A Doctrine At Constitutional Crossroads, Nelson E. Roth, Scott E. Sundby Jan 1984

The Felony-Murder Rule: A Doctrine At Constitutional Crossroads, Nelson E. Roth, Scott E. Sundby

Articles

No abstract provided.