Law Commons^™

The New Dread, Part Ii: The Judicial Overthrow Of The Reasonableness Standard In Police Shooting, Kindaka J. Sanders

Cleveland State Law Review

This Article series argues that the Supreme Court’s jurisprudence on excessive force from Graham v. Connor to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law and order, increased police discretion, and the deconstruction of the Warren Court’s expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of conservatism. Modern conservatism developed as a backlash against various social movements like the Civil Rights Movement and spontaneous urban rebellions during …

Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman

Articles

There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?

About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”

Until now, no one has empirically tested whether …

Racial Revisionism, Shaun Ossei-Owusu

All Faculty Scholarship

Review of Corey Robin, The Enigma of Clarence Thomas (New York: Metropolitan Books, 2019).

Divided By The Sermon On The Mount, David A. Skeel Jr.

All Faculty Scholarship

This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn the other cheek when struck, love their neighbor as themselves, and pray that their debts will be forgiven as they forgive their debtors. Divergent interpretations of these teachings have given rise to competing evangelical visions of justice. One side of today’s divide—the religious right—can be traced directly back to the fundamentalist critics of the early …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

Articles

In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

A New Philosophy In The Supreme Court, Robert M. Sanger

Robert M. Sanger

A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton

Senior Honors Theses

This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles.

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Conservatism And Switcher's Curse, Aaron Edlin

Aaron Edlin

Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian

Scholarship@WashULaw

The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …

The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett

Richard W Garnett

formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and …

British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel

Dan Priel

There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Faculty Scholarship

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Book Review. Tax And Spend: The Welfare State, Tax Politics, And The Limits Of American Liberalism By Molly C. Michelmore, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

America Reborn? Conservatives, Liberals, And American Political Culture Since 1945, Nick Salvatore

Nick Salvatore

[Excerpt] From the perspective of the early twenty‑first century, we can chide the good professor for not carefully considering the consequences of what he wished for half a century ago. For it is clear that the force of this conservative movement in America was in fact “stronger than most of us [knew]” or could have imagined in 1950, or, indeed, in 1968. This conservative “impulse”, those “irritable mental gestures”, has largely restructured American political thinking with a force and popular approval that remains stunning to consider. The growth of the conservative movement since 1945 was also accompanied by the slow …

The Birthright Citizenship Controversy: A Study Of Conservative Substance And Rhetoric, Allen R. Kamp

Allen R. Kamp

This essay is a critique of the conservative rhetoric used in their attack on birthright citizenship—as granted by Clause 1 of the Fourteenth Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The rhetoric of that attack violates the traditional canons of conservative argumentation and interpretation, such as original intent and plain meaning. As such, their arguments call into question the seriousness of their allegiance to these canons.

Conservative Eras In Supreme Court Decision Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen M. Feldman

Stephen M. Feldman

Commentators often describe Employment Division v. Smith as the beginning of a new era in free exercise decision-making. Before Smith, the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims. After Smith, the Court deferred to the political process, upholding any reasonable law of general applicability. From a doctrinal standpoint, this description of Smith is perfectly accurate and informative. In this Essay, I argue that from a legal-political standpoint, Smith manifests the culmination of one type of judicial conservatism -- a traditionalist conservatism that had been developing since the 1970s. Judicial restraint and …

Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain

Faculty Scholarship

The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

ABSTRACT

Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law, in a way that may utterly defeat that cause.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII, “anti-subordination” and “anti-classification.” The …

Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …

British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel

All Papers

There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. …

Gerald Ford, The Nixon Pardon, And The Rise Of The Right , Laura Kalman

Cleveland State Law Review

Perhaps more than the 1960s, the early 1970s marked the high water mark of the liberal consensus. Roe v. Wade, which grounded the right to abortion in the right to privacy, represented the apex of rights-based liberalism and perpetuated the division between public and private, a crucial facet to liberalism. As President, Nixon often governed liberally even though he talked conservatively, and thus many conservatives regarded him as a traitor. The rise of the modern Republican Party and the right was highly contingent: When Nixon resigned, both the Republican Party and conservatives seemed even more divided, endangered, and mired in …

Trying A New Way: Barack Obama’S Tolerance Of Intolerance, Stephanie L. Phillips

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Conscience Of A Court, Girardeau A. Spann

University of Miami Law Review

No abstract provided.

Santa Clara Law Review, Jeffrey Rosen

Santa Clara Law Review

No abstract provided.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Civil Society And Its Discontents: The Two Pillars Of Edmund Burke's Legal Philosophy, James A. Todd

James A. Todd

Author’s Abstract: This article will undertake a complete survey of the jurisprudential thought of Edmund Burke. In doing so, it will attempt to place civil society as the focus of all jurisprudential elements of Burke’s thought. Burke put forward the components of a legal order that tended toward the establishment of a fundamentally liberal society, with spontaneity as the engine of both law and social growth. The positive pillar of Burke’s thought refers to the maxims of jurisprudence that foster social harmony, allowing this growth to proceed apace. The complementing, negative pillar of Burke’s legal thought focuses on protecting these …

Runaway Grand Jury: Activists Attempt To Redefine Obscenity Law In Kansas, Jill Barton

Articles

No abstract provided.

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

Louisiana Law Review

No abstract provided.

Rescuing Burke, Carl T. Bogus

Missouri Law Review

This Article has three objectives. The first is to demonstrate Burke's liberalism. The second is to argue that Burke might also be considered a conservative, but a certain kind of conservative only, namely, a traditional conservative. Edmund Burke's philosophy is at war with that of the dominant conservatives of today - libertarians, neoconservatives, and social conservatives 2 - even though these conservatives seek to associate their thinking with his. Thus, I seek to deny to these groups Burke's good name. At the same time, I wish to show that Burke offers common ground to some liberals and conservatives. These groups …