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Full-Text Articles in Law
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Faculty Scholarship
The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …
Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green
Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green
Faculty Scholarship
No abstract provided.
Disclosures For Equity, Atinuke O. Adediran
Disclosures For Equity, Atinuke O. Adediran
Faculty Scholarship
This Article addresses how to increase funding to nonprofit organizations that are led by minorities or serve communities of color and how to hold corporations and private foundations who make public commitments to fund these organizations accountable for those commitments. The Article makes two policy recommendations to address these problems, while engaging with Supreme Court jurisprudence on mandatory disclosures to ensure that the proposals are narrowly tailored to institutional donors and include an opt-out provision so as not to chill the constitutional protection of the freedom of association. The first is for charities to publicly disclose their institutional donors in …
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
Faculty Scholarship
No abstract provided.
Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown
Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown
Faculty Scholarship
The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …
Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue
Protecting The Supreme Court: Why Safeguarding The Judiciary’S Independence Is Crucial To Maintaining Its Legitimacy, Isabella Abelite, Evelyn Michalos, John Rogue
Faculty Scholarship
The stability of the Supreme Court’s size and procedures is a critical source of legitimacy, but reforms might protect the Court’s independence from politics. Perceptions among members of the public that justices are political actors harms the rule of law. This report discusses reforms to ensure that each president receives the same number of appointments to the Supreme Court. The report also considers how to guarantee each nominee a Senate hearing and reforms to the retirement stage of justices’ tenures.
Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky
Case-Linked Jurisdiction And Busybody States, Howard M. Erichson, John C.P. Goldberg, Benjamin Zipursky
Faculty Scholarship
No abstract provided.
Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph Landau
Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph Landau
Faculty Scholarship
In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, …
What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson
What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson
Faculty Scholarship
In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …
In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher
In Defense Of International Comity, Thomas H. Lee, Samuel Estreicher
Faculty Scholarship
A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction on the basis of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. …
Deconstitutionalizing Dewey, Aaron J. Saiger
Deconstitutionalizing Dewey, Aaron J. Saiger
Faculty Scholarship
No abstract provided.
Regulating Prosecutors’ Courtroom Misconduct, Bruce A. Green
Regulating Prosecutors’ Courtroom Misconduct, Bruce A. Green
Faculty Scholarship
Trial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent …
Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe
Judicial Activism In Trial Courts, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
No abstract provided.
Abortion Talk, Clare Huntington
The Power Side Of The Second Amendment Question: Limited, Enumerated Powers And The Continuing Battle Over The Legitimacy Of The Individual Right To Arms, Nicholas J. Johnson
The Power Side Of The Second Amendment Question: Limited, Enumerated Powers And The Continuing Battle Over The Legitimacy Of The Individual Right To Arms, Nicholas J. Johnson
Faculty Scholarship
Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy, the Bar, and the judiciary remains skeptical about the constitutional bona fides of the individual right to arms. A primary source of that skepticism is the view pressed most forcefully by professional historians that the Second Amendment had nothing to do with individual self-defense and at best protects an “individual militia right” that has no practical application in modern America. This Article …
Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Shugerman
Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Shugerman
Faculty Scholarship
Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …
Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce A. Green, Rebecca Roiphe
Learning To Live With Judicial Partisanship: A Response To Cassandra Burke Robertson, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
No abstract provided.
Reasonable Doubt And Moral Elements, Youngjae Lee
Reasonable Doubt And Moral Elements, Youngjae Lee
Faculty Scholarship
The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
A Fiduciary Theory Of Judging, Ethan J. Leib, David L. Ponet, Michael Serota
Faculty Scholarship
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. This paper reveals how the law governing fiduciary relationships sheds new light on this age-old pursuit, and therefore, on the very nature of the judicial office itself. The paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insights into what it means to be …