Law Commons^™

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Pro-Gun Scholars Twist Constitution, Kenneth Lasson

All Faculty Scholarship

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.

October 19, 2007: World Magazine Interview With Bruce Ledewitz, Bruce Ledewitz

Hallowed Secularism

World Magazine interview with Bruce Ledewitz

Supreme Court Report 2006-2007: Closing Of The Courthouse Doors?, Julie M. Cheslik, Andrea Mcmurty, Kristin Underwood

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2006-2007 term focusing on decisions of particular relevance to state and local government. In reviewing those decisions, we focus on the shifts in the Court over time on those issues.

The expectation that the Supreme Court would shift to the right came to fruition in the 2006-07 term by the sheer lack of clear decisions on the merits. Time and again, the Court decided cases on the standing issue, never reaching the merits and frustrating litigants and citizens attempts to define their rights. Yale law professor Judith Resnick …

Preacher Man V. Porn King: A Legal, Cultural, And Moral Drama Starring Jerry Falwell, Larry Flynt, And The First Amendment, Tory L. Lucas

Faculty Publications and Presentations

Take one part proselytizing, political Southern Baptist televangelist, one part obnoxious, media-seeking pornographer, and one part First Amendment free speech, and you get the colossal legal, cultural, and moral battle embodied in the seminal Supreme Court case of Hustler Magazine v. Falwell. It all started in late 1983 with a controversial and despicable ad parody of a man and his mother that culminated in an aggressive legal battle between litigants on polar opposites of the moral and legal spectrum. Going behind the text of the Supreme Court decision, this article delves into the history behind the unique circumstances that made …

Supreme Court Of The United States, October Term 2007 Preview, Georgetown University Law Center, Supreme Court Institute, Rupal Doshi

Supreme Court Overviews

No abstract provided.

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

All Faculty Scholarship

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 …

Supreme Court Of The United States, October Term 2006 Overview, Georgetown University Law Center, Supreme Court Institute, Rupal Doshi

Supreme Court Overviews

No abstract provided.

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.

The Rehnquist Court: A "By The Numbers" Retrospective, Lori A. Ringhand

Scholarly Works

The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for nineteen years, longer than any other Chief Justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained Court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive Court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the “swaggering confidence” that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing …

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

All Faculty Scholarship

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.

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

Furman Fundamentals, Corinna Barrett Lain

Law Faculty Publications

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …

In Defense Of The Roosevelt Court, Wilson R. Huhn

Akron Law Faculty Publications

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose – the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build.

Two justices presently serving on the Supreme Court – …

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Faculty Scholarship

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …

Deciding Death, Corinna Barrett Lain

Law Faculty Publications

When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment "evolving standards of decency" doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of "evolving standards" death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the way they did. I …

An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings …

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.

Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone

Faculty Publications

In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.” This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and …

Art As Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

Scholarly Works

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

The "Federalism Five" As Supreme Court Nominees, 1971-1991, John Q. Barrett

Faculty Publications

This article looks back at the Senate confirmation hearing testimonies of five Supreme Court nominees. Following their appointments to the Court, these justices—Chief Justice Rehnquist and Associate Justices O'Connor, Scalia, Kennedy and Thomas—generally voted together in path-breaking federalism cases. They reinvigorated constitutional law limits or decreed new ones on national legislative power, supported the "sovereignty" of state governments, and thus came to be known in some circles as the Rehnquist Court's "Federalism Five." As nominees testifying before the Senate Judiciary Committee, however, these "federalism" justices did not announce, or for the most part even much hint at, what came to …

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.

Storm In A Teacup: The U.S. Supreme Court’S Use Of Foreign Law, Austen L. Parrish

Articles by Maurer Faculty

In this Article, Professor Parrish explores the legitimacy of the U.S. Supreme Court's use of foreign law in constitutional adjudication. In recent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for Justices to be impeached if they cite to foreign sources. Last year, the condemnation of comparative constitutionalism reached a high note, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The …

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

Publications

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Clerks, Peter B. Rutledge

Scholarly Works

Book Review of Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, Artemus Ward and David L. Weiden. NYU, 2006. Pp xiv, 337. and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, Todd C. Peppers. Stanford, 2006. Pp xv, 301

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.