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Articles 1 - 30 of 91
Full-Text Articles in Law
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk
Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk
Richard Faulk
The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.
7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti
7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti
Corey A Ciocchetti
These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.
The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi
The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi
Tonja Jacobi
Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard—and the left-right division on the Court is considered so entrenched—that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that—that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways …
Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thomas A. Lambert, Alden F. Abbott
Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thomas A. Lambert, Alden F. Abbott
Thomas A. Lambert
As Judge Frank Easterbrook famously explained three decades ago, antitrust is an inherently limited body of law. In crafting and enforcing liability rules to combat market power and encourage competition, courts and regulators may err in two directions: they may wrongly forbid output-enhancing behavior or wrongly fail to condemn output-reducing conduct. The social losses from false convictions and false acquittals, taken together, comprise antitrust’s “error costs.” While it may be possible to reduce error costs by making liability rules more nuanced, added complexity raises the “decision costs” incurred by business planners (ex ante) and adjudicators (ex post …
“Shuffling” Sam Thompson And Other Notes From The 1959 Term, Ralph J. Moore Jr.
“Shuffling” Sam Thompson And Other Notes From The 1959 Term, Ralph J. Moore Jr.
Ralph Moore
A wry account of the work of the Supreme Court of the United States during the 1959 Term by one of Chief Justice Earl Warren's law clerks. It gives accounts of the Court's handling of three cases that term, one involving Sam Thompson, who was harassed by police in Louisville, Kentucky, one involving Leon Wolfe and friends, who were convicted of criminal trespass for playing golf on a Jim Crow course on city-owned land in Greensboro, North Carolina, and one involving Clifton Poret and Edgar Labat, who spent years on death row in Louisiana after conviction for raping a white …
The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson
The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson
LESTER JACKSON
Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …
Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre
Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre
Jorge A Mestre
No abstract provided.
New Jersey Goes “All In” For Sports Gambling: Examining The Constitutionality Of The Professional And Amateur Sports Protection Act, Tyler W. Mullen
New Jersey Goes “All In” For Sports Gambling: Examining The Constitutionality Of The Professional And Amateur Sports Protection Act, Tyler W. Mullen
Tyler W Mullen
Despite being illegal in all but a handful of U.S. jurisdictions, sports gambling has developed into a multi-million dollar industry. Eager to capitalize on the potential revenues, New Jersey recently challenged the constitutionality of the Professional and Amateur Sports Protection Act (“PASPA”), the federal sports gambling law. PASPA effectively prohibits the vast majority of states from operating or sanctioning sports gambling schemes. However, the particular methods that PASPA uses to achieve this objective raise serious federalism concerns. While the Third Circuit recently rejected New Jersey’s constitutional challenges to PASPA, this Comment argues that the court reached the wrong conclusions on …
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman
Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman
Stephen M. Feldman
How do law and politics intertwine in Supreme Court adjudication? Traditionally, in law schools and political science departments, scholars refused to mix law and politics. Law professors insisted that legal texts and doctrines controlled Supreme Court decision making, while political scientists maintained that political ideologies dictated the justices' votes. In the late twentieth century, some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct. They attempted to stir law and politics together, but ended with an oil-and-water type of mix; law and politics settled apart. The best approach, as presented in …
Supreme Court Orders Potentially Misunderstood And Confusing-Case Study Of Two Recent Supreme Court Orders, James T. Struck
Supreme Court Orders Potentially Misunderstood And Confusing-Case Study Of Two Recent Supreme Court Orders, James T. Struck
James T Struck
Supreme Court Orders Potentially Misunderstood and Confusing-Case Study of Two Recent Supreme Court Orders Author-James T. Struck BA, BS, AA, MLIS Faced with around 10,000 petitions for certiorari every year and thousands of other reconsideration, mandamus, rehearing, ruling, decision, opinion, appointment, fellowship, research, solicitor general requests, it is no surprise that the Supreme Court's orders have potentially confusing content. Let's consider a recent order of the U.S. Supreme Court from this month. Please read the order from TUESDAY, JANUARY 7, 2014 CERTIORARI DENIED 13-8030 MUHAMMAD, ASKARI A. V. FLORIDA (13A674) The application for stay of execution of sentence of death …
Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford
Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford
W. Warren H. Binford
This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Brannon P. Denning
In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Robert R Robinson
Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Atlantic Marine Construction Co. V. U.S. District Court, Stephen E. Sachs
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Atlantic Marine Construction Co. V. U.S. District Court, Stephen E. Sachs
Stephen E. Sachs
[This brief was filed in support of neither party in No. 12-929 (U.S., cert. granted Apr. 1, 2013).] The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct. If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, …
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Holmes And The Common Law: A Jury's Duty, Matthew P. Cline
Matthew P Cline
The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …
Transparency, Independence And Diversity: Does The United States Have It Better?-A Comparative Analysis Of The Process Of Appointment Of Judges To The Supreme Court In The United States And India., Varun Vaish
Varun Vaish
The rise of legal realism has made it manifestly clear that the background and worldview of judges influence cases.This is evidenced in the United States where the appointment of judges to the higher judiciary is believed to be, at least in some measure, predicated upon the proximity of the political ideology of the judge with that of the appointing party. This influence is acknowledged, questioned and somewhat mitigated against by the process of appointment wherein the Senate ratifies the president’s choice. However the lack of acknowledgement of this influence and its consequent securitization, in the appointment of judges is where …
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello
Adam Lamparello
Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Robert R Robinson
Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …
Forgetting Romer, Susannah W. Pollvogt
Вклад Л.Д. Брандайза В Развитие Конституционного Права Соединенных Штатов Америки, Leonid G. Berlyavskiy
Вклад Л.Д. Брандайза В Развитие Конституционного Права Соединенных Штатов Америки, Leonid G. Berlyavskiy
Leonid G. Berlyavskiy
Article is devoted to the research of the constituion-legal concept by Louis Brandeis — a famous American lawyer, Associate Justice of the Supreme Court of the USA. He is considered as one of four greatest judges XX cent. L.Brandeis was possible to become successful in upholding social and labour law of working people. «Brandeis Brief» became an essential contribution to the Procedural law of the USA. Brandeis was a supporter of the "Living Constitution» concept that is based on the idea of social evolutions in the Legal system and the Organic law.
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti
Corey A Ciocchetti
The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Using our now-famous "Five Takes" format, Glenn Reynolds and I analyze NFIB v. Sebelius from five different perspectives: (1) Sebelius as Marbury; (2) Sebelius as Bakke; (3) Sebelius and the "legitimating" power of judicial review; (4) Sebelius as a Thayerian decision; and (5) Sebelius as part of some long game of Chief Justice Roberts'.
The Supreme Court Opens The Road To Health Care Reform, But Will California Meet The Challenge?, Craig B. Garner
The Supreme Court Opens The Road To Health Care Reform, But Will California Meet The Challenge?, Craig B. Garner
Craig B. Garner
This article provides an overview of the landmark 2012 United States Supreme Court decision National Federation of Independent Business v. Sebelius. Almost 28 months after President Barack Obama signed the Affordable Care Act (ACA) into law, the Supreme Court upheld the constitutionality of health care reform. Though the underlying arguments set forth in the majority opinion venture deep into the labyrinth of constitutional law and test the traditional boundaries of federalism, the holding itself is clear and concise: the ACA’s individual mandate is constitutional; and the Medicaid expansion provisions found within the ACA survive, but the Federal Government is prohibited …
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Warren S Grimes
The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes
Warren S Grimes
The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Warren S Grimes
The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Warren S Grimes
The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …
Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher
Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher
Ryan K Melcher
In 2012, the Supreme Court handed down its seven-to-two ruling in the case of Maples v. Thomas, a sad tale of attorney-ethics disasters and a seemingly broken (assuming it ever worked) Alabama criminal-justice system. Although the Court held that the “extraordinary” facts of the case warranted excusing Maples’s procedural default in his federal habeas corpus petition (namely, his failure to file a petition in time), it did not make entirely clear whether this was a one-time-only deal or a “template” (as dissenting Justice Scalia asserted) for future petitioners seeking relief based on similar falters of their post-conviction-level attorneys. This Article …
Obamacare And Federalism's Tug Of War Within, Erin Ryan
Obamacare And Federalism's Tug Of War Within, Erin Ryan
Erin Ryan
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …
Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk
Stepping Away From The Abyss? Will The Supreme Court Preclude Extraterritorial Application Of The Alien Tort Statute?, Richard O. Faulk
Richard Faulk
Policymakers find themselves increasingly occupied with ATS claims arising from conduct that occurred in other countries and which has no significant connection to the United States — claims that may not be consistent with our own government’s policies for promoting human rights. Although this issue of “extraterritorial” application has been inherent in every ATS case that has involved injuries caused by foreign corporations outside the United States, it has evaded review in every instance, and — until the Supreme Court heard arguments recently in Kiobel v. Royal Dutch Petroleum — it appeared that the proliferation of ATS cases in that …