Judges Commons^™

The Battle For The Soul Of International Shoe, Eric H. Schepard

Eric H Schepard

In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …

U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack

Wayne McCormack

One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Instrumentalist And Holmesian Voices In The Rhetoric Of Reapportionment: The Opinions Of Justices Brennan And Frankfurter In Baker V. Carr, Carlo A. Pedrioli

Carlo A. Pedrioli

In his autobiography, Chief Justice Earl Warren described Baker v.Carr as “the most important case of [his] tenure on the Court.” Following Brown v. Board of Education by eight years, Baker was the second “blockbuster” case of the Warren Court. Warren felt that, if the progeny of Baker had preceded Brown, Brown would have been unnecessary.

As with other major Supreme Court cases, Baker featured rhetoric from highly influential justices, two of whom in this case were Justice William Brennan and Justice Felix Frankfurter. Justice Brennan would write the groundbreaking opinion for the Court that would be part of “the …