Law Commons^™

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the “Korematsu …

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science. What can be …

Self-Conscious Dicta: The Origins Of Roe V. Wade's Trimester Framework, Randy Beck

Randy Beck

One of the controversies arising from Roe v. Wade (1973) has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time.

The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

Democracy At The Corner Of First And Fourteenth: Judicial Campaign Spending And Equality, James Sample

James Sample

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding …

The Extent To Which "Yellowstonre Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Seeing The Forest For The Trees: The Transaction Or Occurrence And The Claim Interlock Civil Procedure, Douglas D. Mcfarland

Douglas D. McFarland

The article traces the transaction or occurrence and the claim through various joinder (cross-claims, permissive joinder of parties, rule 14 claims), pleading (claims, separate counts, relation back of amendments), and interlocutory appeal (54(b))rules to the following conclusion. Since courts have struggled with the proper fact-based definition of claim and transaction or occurrence when they interpret individual rules in individual cases, we should not be surprised that courts and commentators have been reluctant to recognize the commonality of these concepts throughout the rules. “Claim” has been interpreted differently in different contexts. “Transaction or occurrence” has been interpreted differently in different contexts. …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

The Rhetoric Of Originalism, David Finkelstein

David Finkelstein

Justice Stevens has recently observed that originalism "holds out objectivity and restraint as its cardinal and, it seems, only virtues." McDonald v. City of Chicago, Ill., 130 S.Ct. 3020, 3118 (2010) (Stevens, J., dissenting). This article critically examines the notion that non-originalist methods of interpretation invite subjectivity into the process and are therefore insufficient to constrain. I suggest that the originalist's dissatisfaction with ordinary methods of interpretation rests of bad philosophy of language, and that properly thought through, Wittgenstein's rule-following considerations point to a better way of thinking about meaning in general, and legal interpretation in particular.

Saying “I’M Sorry” Is Not So Simple: Embracing The Complexity Of The Apology With A New Evidentiary Rule, Amy Poyer

Amy Poyer

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law …

Limiting Legislative Courts: Protecting Article Iii From Congressional Evisceration, Kenneth G. Coffin

Kenneth G. Coffin

As with the notion of a unitary executive or a limited commerce clause, hope for a single federal judiciary has fallen by the wayside. Since 1828, the Supreme Court has recognized a separate class of “legislative courts.” Judges of these legislative, or Article I, courts fall outside the guarantees of Article III. Congress may therefore provide for limited terms of office, disparate methods of appointment and reduction of salaries. Currently there are over 2,000 Article I judges, including Bankruptcy, Magistrate, and Administrative Law judges, just to name a few. In contrast, only 829 United States judges can claim Article III …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley Joondeph

Bradley W. Joondeph

This paper explores some of these empirical uncertainties surrounding the political dimensions of preemption in the federal courts. More concretely, it presents a statistical study of every preemption decision rendered by the United States Courts of Appeals from January 1, 2005, to December 31, 2009, a total of 560 decisions and just over 1,700 judicial votes. And these data tell a story consisting of two distinct parts. The first part is that preemption disputes seem to produce a large measure of judicial consensus. In the full universe of cases, there is only a slight difference between Republican and Democratic appointees: …

Cleaning Up Bankruptcy: Limiting The Dischargeability Of Environmental Cleanup Costs, Sonali P. Chitre

Sonali P Chitre

This article reconciles the joint aims of environmental and bankruptcy law after Judge Posner’s myopic opinion in the Seventh Circuit’s resolution of U.S. v. Apex Oil. These two areas of law represent alternative means to the same end—the equitable distribution of limited resources—and share equity’s traditional emphasis of function over form. Ignoring these principles, Judge Posner ruled in Apex that a cleanup order constitutes a dischargeable “claim” when styled as a legal judgment but not when styled as an equitable injunction. This despite the fact that in either case the liability amounts to the same thing-payment must be made for …

Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …

Polarized Circuits: Party Affiliation Of Appointing Presidents, Ideology And Circuit Court Voting In Race And Gender Civil Rights Cases, Christopher R. Smith

Christopher R Smith

ABSTRACT Polarized Circuits: Party Affiliation of Appointing Presidents, Ideology and Circuit Court Voting in Race and Gender Civil Rights Cases This article seeks to examine the impact of Presidential party affiliation on the ideological voting patterns of Circuit Court judicial appointments within the context of race and gender civil rights cases. The article assesses two hypotheses regarding Circuit Court judicial voting patterns in race and gender civil rights cases: 1) That the ideological voting gap between Democratic appointed Circuit Court judges and Republican appointed Circuit Court judges has widened over time within the context of race and gender civil rights …

Sugarcoating The Eighth Amendment, Christopher J. Declue

Christopher J DeClue

This Article demonstrates that Eighth Amendment gross disproportionality review 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 conceivable government purpose. Case law illustrates a similar standard is applied in the face of an Eighth Amendment challenge to the length of a prison sentence. Under gross disproportionality review, the length of a sentence is upheld so long as the sentence furthers a conceivable penological purpose. Moreover, under this standard, the length of a sentence violates the Eighth Amendment only on the rare occasion that …

Losing Hold Of The Guiding Hand: Ineffective Assistance Of Counsel In Juvenile Delinquency Representation, Barbara A. Fedders

Faculty Publications

No abstract provided.

It's Nothing Personal, It's Just Business: A Commentary On The South Carolina Business Court Pilot Program, Andrew A. Powell

South Carolina Law Review

No abstract provided.

Are Smartphones Like Footlockers Or Crumped Up Cigarette Packages - Applying The Search Incident To Arrest Doctrine To Smartphones In South Carolina Courts, Justin M. Wolcott

South Carolina Law Review

No abstract provided.

Are We There Yet: Gatekeepers, Daubert, And An Analysis Of State V. White, Mark R. Nash

South Carolina Law Review

No abstract provided.

Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff

Faculty Publications

The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

Of Cameras And Courtrooms, Alex Kozinski, Robert Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Because The Cart Situates The Horse: Unrecognized Movements Underlying The Indian Supreme Court’S Internalization Of International Environmental Law, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

The text that follows is intended to serve as an examination of the approaches and methods employed by the Indian Supreme Court in its effort to integrate international environmental norms such as the principle of Sustainable Development, the Precautionary Principle and the Polluter Pays Principle as part of the existing body of binding, municipal rules in India. Virtually all of Indian legal jurisprudence that speaks to this subject has been developed by the Supreme Court. Likewise, in no small part for this contribution, the Court has developed a reputation for being an activist institution that has since the mid 1980s …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Supreme Appointment: Visionaries Need Not Apply, Charles W. Rhodes

Charles W Rhodes

The recent announcement of Justice John Paul Stevens that he would retire at the end of the October 2009 Term has instigated the typical media frenzy of shortlists and speculation regarding the identity of the next nominee to the United States Supreme Court. Will President Barack Obama make a bold nomination of a liberal judicial visionary to battle Justices Scalia and Thomas? Will he nominate a political officeholder who will bring a new perspective on the role of the Court? Or will he follow the recent tradition of nominating a sitting federal appellate court judge with a prestigious academic and …

Changing The Rules Of The Game: Deriving New Rules And Practices From Caperton V. A.T. Massey Coal Co., Aman L. Mcleod

Aman L McLeod

In 2009, the United States Supreme Court decided the case of Caperton v. A.T. Massey Coal Co., in which it ruled that judges must recuse themselves in cases involving those who have provided a disproportionate amount of financial support to their campaigns. This decision has forced states to reconsider their campaign finance laws and their judicial recusal rules. This article proposes practical and modest reforms that states could adopt that would effectively respond to the Caperton decision.

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …