Law Commons^™

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title VII's scope. …

Observations On Macdonald V. Moose, Kevin C. Walsh

Law Faculty Publications

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Originalism All The Way Down?, Kurt T. Lash

Law Faculty Publications

In their new book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.

It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines …