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Articles 361 - 390 of 2194
Full-Text Articles in Law
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken
Samuel R. Olken
In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …
Deactivating Actavis: The Clash Between The Supreme Court And (Some) Lower Courts, Joshua Davis, Ryan Mcewan
Deactivating Actavis: The Clash Between The Supreme Court And (Some) Lower Courts, Joshua Davis, Ryan Mcewan
Joshua P. Davis
Numerous trial courts have misinterpreted the Supreme Court’s recent decision in FTC v. Actavis, Inc. An interesting question is why they have done so. Perhaps lower courts disagree with the Supreme Court about so-called “reverse payment” cases, the subject of the Actavis opinion. Or perhaps they simply have made random mistakes, as is perhaps inevitable, particularly in a challenging area of the law like antitrust. This Article suggests an alternative account: that lower courts are seeking clear guidance from Actavis, clear guidance that the Supreme Court has not tended to provide in antitrust cases in general and that it did …
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Michigan Journal of Environmental & Administrative Law
The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …
Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber
Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber
Michigan Journal of Environmental & Administrative Law
Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …
Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese
Michigan Journal of Environmental & Administrative Law
Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …
The Supreme Court’S Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley
The Supreme Court’S Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley
William & Mary Law Review
Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively “jurisdictional.” In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court’s erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …
The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt
Michigan Law Review
The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …
No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones
No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones
Articles
If the Supreme Court rules against the government in King v. Burwell, insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges. The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage. Because sicker people will retain coverage at a much higher rate than healthier people, insurance premiums in the individual market will surge by as much as fifty percent. Policymakers will come under intense pressure to mitigate the fallout from a government loss …
Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of Voting Rights Act Of 1965, Bridgette Baldwin
Backsliding: The United States Supreme Court, Shelby County V. Holder And The Dismantling Of Voting Rights Act Of 1965, Bridgette Baldwin
Journal of Race, Gender, and Ethnicity
No abstract provided.
Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman
Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman
Articles
In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …
In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman
In All Fairness: Using Political Broadcast Access Doctrine To Tailor Public Campaign Fund Matching, Andrew V. Moshirnia, Aaron T. Dozeman
University of Michigan Journal of Law Reform
Recent United States Supreme Court decisions have undermined the viability of campaign public financing systems, a vital tool for fighting political corruption. First, Citizens United v. FEC allowed privately financed candidates and independent groups to spend unlimited amounts of money on campaigning. Publicly financed candidates now risk being vastly outspent. Second, Arizona Free Enterprise Club’s Freedom PAC v. Bennett invalidated a proportional fund matching system whereby privately financed candidates’ or independent groups’ spending triggered funds to publicly funded candidates. These decisions effectuate a libertarian speech doctrine: all speakers, individual or corporate, must be absolutely unburdened. To comply with this approach, …
Federalism And Family Status, Courtney G. Joslin
Federalism And Family Status, Courtney G. Joslin
Indiana Law Journal
The myth of family law’s inherent localism is sticky. In the past, it was common to hear sweeping claims about the exclusively local nature of all family matters. In response to persuasive critiques, a narrower iteration of family law localism emerged. The new, refined version acknowledges the existence of some federal family law but contends that certain “core” family law matters—specifically, family status determinations—are inherently local. I call this family status localism. Proponents of family status localism rely on history, asserting that the federal government has always deferred to state family status determinations. Family status localism made its most recent …
Duty To Defend And The Rule Of Law, Gregory F. Zoeller
Duty To Defend And The Rule Of Law, Gregory F. Zoeller
Indiana Law Journal
This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)
Banning The Bing: Why Extreme Solitary Confinement Is Cruel And Far Too Usual Punishment, Elizabeth Bennion
Banning The Bing: Why Extreme Solitary Confinement Is Cruel And Far Too Usual Punishment, Elizabeth Bennion
Indiana Law Journal
The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with preexisting mental-health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high …
Reflections On Comity In The Law Of American Federalism, Gil Seinfeld
Reflections On Comity In The Law Of American Federalism, Gil Seinfeld
Articles
Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii
Michigan Law Review
In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …
Six Overrulings, Andrew Koppelman
Six Overrulings, Andrew Koppelman
Michigan Law Review
John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …
Griggs At Midlife, Deborah A. Widiss
Griggs At Midlife, Deborah A. Widiss
Michigan Law Review
Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …
The Federal Question In Patent-License Cases, Amelia Smith Rinehart
The Federal Question In Patent-License Cases, Amelia Smith Rinehart
Indiana Law Journal
The patent law has long recognized a patent owner’s ability to license some interest in the patent by granting to others permission to tread upon the patent owner’s property rights without legal consequence. When one of the parties to a patent license decides to seek remedies from the other party for a license harm, the resulting litigation may be a patent-infringement case with a contract issue or a contract case with a patent issue. In most cases, the patent owner brings her suit against the licensee in federal court, alleging that the licensee breached the license contract and, as a …
The Scope Of Precedent, Randy J. Kozel
The Scope Of Precedent, Randy J. Kozel
Randy J Kozel
The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian
john a. powell
This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
Articles
On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand
Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand
Michigan Law Review
The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of …
The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf
The Supreme Court 1997 Term -- Foreword: The Limits Of Socratic Deliberation, Michael C. Dorf
Michael C. Dorf
No abstract provided.
First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael Dorf
First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael Dorf
Michael C. Dorf
No abstract provided.
Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky
Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky
Michael C. Dorf
No abstract provided.
Foreward: The Most Confusing Branch, Michael C. Dorf
Foreward: The Most Confusing Branch, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Rights And Rules: An Overview, Matthew Adler, Michael Dorf
Rights And Rules: An Overview, Matthew Adler, Michael Dorf
Michael C. Dorf
Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …
The Rhetoric Of Constitutional Absolutism, Eric Berger
The Rhetoric Of Constitutional Absolutism, Eric Berger
William & Mary Law Review
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …
Same-Sex Marriage And Loving V. Virginia: Analogy Or Disanalogy?, Ronald Turner
Same-Sex Marriage And Loving V. Virginia: Analogy Or Disanalogy?, Ronald Turner
Washington and Lee Law Review Online
In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an …