Law Commons^™

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

Strategies Of Containment: Status Regimes And The American Constitution, Bruce E. Boyden

Bruce E. Boyden

The American constitution was born flawed: it failed to provide a mechanism for resolving entrenched differences in the social status regimes between states. This Article argues that part of the purpose of the Privileges or Immunities Clause of the Fourteenth Amendment was to correct that flaw. The Privileges or Immunities Clause was the culmination of a long antebellum debate over whether southern states had to respect the rights of northern black citizens as they travelled. The Clause achieves this goal by requiring states in certain circumstances to respect the status determinations of other states when the citizens of those other …

The Pursuit Of Perfection: Congressional Power To Enforce The Reconstruction Amendments, Aaron Christopher Bryant

Aaron Christopher Bryant

ABSTRACT In June the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act’s pre-clearance requirement, while at the same time managing to foreshadow that provision’s ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the pre-clearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue “perfect compliance” with the Constitution’s mandate via the use of “broad prophylactic legislation.” Justice Thomas’s statement accurately, though to be sure rather starkly, expressed an …

Presidential Ambitions Of U.S. Supreme Court Justices:, William G. Ross

William G. Ross

A remarkably large number of U.S. Supreme Court justices have had presidential aspirations while serving on the Court. Several have conducted covert presidential campaigns, and a few nineteenth century justices even campaigned openly from the bench. In at least three quarters of the elections between 1832 and 1956, one or more justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as possible candidates. During the past half century, no Supreme Court justice appears to have entertained serious presidential ambitions, probably because no justice who has been appointed during the past fifty years has held any …

Tailoring The Narrow Tailoring Requirement In The Supreme Court’S Affirmative Action Cases, Luiz A. Arroyo

Luiz A Arroyo

When faced with the use of race by affirmative action programs, the Supreme Court has decided to subject any such program to its strict scrutiny test. In applying that test, the Court first determines whether there is a compelling interest for the use of race by the affirmative action program, and then the Court determines whether the program is narrowly tailored to meet that compelling interest. This Article focuses on the second part of the Court’s test: the narrow tailoring requirement.

This Article analyzes the narrow tailoring requirement by first detailing the history of the Supreme Court’s use of the …

Sugarcoating The Eighth Amendment: Gross Disproportionality Review Is Simply The Fourteenth Amendment Rational-Basis Test, Christopher J. Declue

Christopher J DeClue

It is extremely difficult for a defendant to successfully challenge the length of a sentence under the Eighth Amendment’s prohibition of cruel and unusual punishment. To succeed in such a challenge, a defendant must establish that his sentence is grossly disproportionate to the offense. However, the Court has never offered consistent, workable guidelines to determine whether a sentence is grossly disproportionate.

This Article demonstrates that gross disproportionality review is simply a rational-basis test, one which is virtually identical to the Fourteenth Amendment rational-basis test. Under the Fourteenth Amendment rational-basis test, a law is upheld so long as it furthers a …

Speech Torts, Deana Ann Pollard Sacks

Deana A Pollard

Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state’s interest in imposing tort liability, then “constitutionalizing” the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent …

Cyberspace Is Outside The Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, Joseph Tomain

Joseph A Tomain

Doctrinal and normative analysis show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. …

The Facts About Ring V. Arizona And The Jury's Role In Capital Sentencing, Sam Kamin, Justin Marceau

Sam Kamin

When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly …

Lawyers, Guns, And Money: Why The Tiahrt Amendment’S Ban On The Admissibility Of Atf Trace Data In State Court Actions Violates The Commerce Clause And The Tenth Amendment, Colin Miller

Colin Miller

The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as …

Why The Supreme Court Issues Plurality Opinions, David R. Stras, James F. Spriggs

David R Stras

Many of the Supreme Court’s most important decisions, such as those involving executive power and the constitutionality of abortion regulations, are decided by plurality decision. Plurality opinions result when five or more Justices agree on the result in a particular case but no single rationale or opinion garners five votes. Many Justices, including William Rehnquist and Ruth Bader Ginsburg, have addressed the problems created by plurality opinions, such as interpretive difficulties in determining the Court’s holding, but few scholars have addressed plurality decisions other than in passing. In the first empirical analysis examining the occurrence of plurality decisions, the authors …

Renters Evicted En Masse: Collateral Damage Arising From The Subprime Foreclosure Crisis, Creola Johnson

Creola Johnson

ABSTRACT: America is experiencing its worst foreclosure crisis in history, and tenants are the silent victims of this crisis. In this Article, Professor Johnson describes the consequences of thousands of tenants of being evicted from residential properties obtained by lenders in foreclosure proceedings against the owners-landlords. The individual consequences include tenants’ renting substandard alternative housing, experiencing disruptions in family life, and even becoming homeless. Societal consequences include the costs imposed upon communities to provide social services to the evicted tenants and their families and the burden on cities in dealing with homes left vacant due to the lenders' inability to …

From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler

Aaron J Shuler

Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …

A Good Time With The Sixth Amendment: The Application Of Apprendi To The Denial Of Good Time Credit, Nicholas J. Xenakis

Nicholas J Xenakis

This Article is about a unique aberration in post-Blakely sentencing jurisprudence. It explains why the Due Process the Sixth Amendment guarantees as articulated in Apprendi v. New Jersey apply to some factual determinations related to the denial of good time credit. At first glance, this is something that should not be. Denials of good time credit are typically evaluated under a ‘some evidence’ standard, and juries normally play no role in such denials since they usually take place post-conviction. Nonetheless, Apprendi does indeed apply to some factual determinations related to the pre-trial behavior of the defendant while incarcerated. In states …

The Origins Of The Privileges Or Immunities Clause, Part Ii: Mr. Bingham's Epiphany, Kurt T. Lash

Kurt T. Lash

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.

This article, the second in a three-part investigation of the origins of the …

Towards A Constitutionally Protected Public Domain, Elizabeth Townsend Gard

Elizabeth Townsend Gard

How are we to understand the physics of the public domain within contemporary copyright law? Is the public domain a constitutionally protected component of the copyright system? The Golan decisions—first in the Tenth Circuit, Golan v. Gonzales, and now the remanded decision from the district court, Golan v. Holder, handed down on April 9, 2009—may provide an avenue towards a definitive answer. The Golan decisions mark the first time a part of the Copyright Act has been found to be unconstitutional. The case concerned the restoration of foreign copyrighted works in the U.S., but the decision could have larger implications …

Essay: The Quran And The Constitution, Ali Khan

Ali Khan

The Quran and the constitution are mutually supportive supreme texts; one does not negate the other. Numerous forms of government, cultural traditions, and economic systems are compatible with both supreme texts. Muslim nations are free to promulgate specific constitutions that reflect their social, political, and economic preferences rooted in history and culture. The specific constitution must reflect the conscience of the nation, for constitutions that fail to do so are vulnerable to amendment, even revolutionary replacement. Because the human condition is constantly evolving, the Quran, though a permanent divine text immune to alteration or amendment, is amenable to the evolutionary …

Congress’S Right To Counsel In Intelligence Oversight, Kathleen Clark

Kathleen Clark

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained …

Original Habeas Redux, Lee B. Kovarsky

Lee Kovarsky

In "Original Habeas Redux," I map the modern dimensions of the Supreme Court’s most exotic jurisdiction—the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction. Scrambling to understand how the authority has evolved since its …

Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod

Sheldon Nahmod

My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …