Law Commons^™

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Susan S. Fortney

No abstract provided.

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

The Dangerous Law Of Biological Race, Khiara M. Bridges

Khiara M Bridges

The idea of biological race—a conception of race that postulates that racial groups are distinct, genetically homogenous units—has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination, the Court’s apparent …

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Symposium Current Issues In Disability Rights Law, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Backdoor Balancing And The Consequences Of Legal Change, Elizabeth Beske

Elizabeth Earle Beske

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Meg Penrose

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women appointed in …

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

Robert M. Sanger

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Katharine Van Tassel

No abstract provided.

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Tejas N. Narechania

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

"The Stepford Justices": The Need For Experiential Diversity On The Roberts Court, Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

The Alien-Citizen Paradox And Other Consequences Of U.S. Colonialism, Ediberto Román

Ediberto Roman

This Article examines the United States' 100-year-old failed promise. In addition to detailing the unequal citizenship status of the people of Puerto Rico, this Article examines the role that racial and ethnic-based prejudice has played in this issue. 34 Essentially, this Article seeks to compare the traditional legal and political rhetoric of American inclusiveness and the virtues of U.S. citizenship to the reality of colonialism and the impact white supremacy has had on U.S. colonial history. By addressing the subordinated status of "aliencitizens," this Article illustrates the incompatibility of equality under colonialism. As Congress addresses the question of Puerto Rico's …

Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Second Amendment And Gun Control, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

The First Amendment: When The Government Must Make Content-Based Choices, Erwin Chemerinsky

Erwin Chemerinsky

Thus, I focus my attention on the problem of the First Amendment when the government must make content-based choices. I want to divide my remarks into four parts. I begin by reviewing the traditional bedrock rule of the First Amendment: The government cannot regulate speech based on its content. Second, I identify a broad range of cases where this rule cannot apply because the government must make content-based choices. Third, I suggest that the usual First Amendment principles are not helpful in analyzing these cases. Finally, I offer some initial thoughts about directions for dealing with this problem.

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Supreme Court 2000-2001 Term: First Amendment Cases, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, Karen Blum, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Government Duty To Protect: Post-Deshaney Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2007 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Supreme Conundrum: A Look Into Neil Gorsuch, And Why This Particular Supreme Court Confirmation Is So Important To The Current Split Between Liberal And Conservative Justices, Alan E. Garfield

Alan E Garfield

No abstract provided.

Some Observations On The Supreme Court's Use Of Property Concepts In Resolving Fourth Amendment Problems, Fernand N. Dutile

Fernand "Tex" N. Dutile

No abstract provided.

Extralegal Supreme Court Policy Making, Joelle A. Moreno

Joelle A. Moreno

The Colbert Report aired its final episode on December 18, 2014. Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly "divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact — such …