Jurisprudence Commons^™

Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman

Pepperdine Law Review

No abstract provided.

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Newman, J., Dissenting: Another Vision Of The Federal Circuit, Blake R. Hartz

IP Theory

No abstract provided.

The Praise Of Silly: Critical Legal Studies And The Roberts Court, James F. Lucarello

Touro Law Review

This Comment demonstrates that the Supreme Court is lying to you in its opinions. Why is it lying? The short answer to this question is quite simple: It is being silly.

There is nothing inherently wrong with being silly. In fact, some praise silliness, as a heightened and healthy understanding of the indeterminate world that incorporates our reality. Silliness, how ever, is only praise-worthy when it is understood and utilized purposefully. The silliness of most of the Justices on the Supreme Court, on the other hand, is a product of self-delusion and fundamentalism, which makes their silliness not silly at …

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Touro Law Review

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional.

The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court. But when you start looking for …

A Passion For Justice, Charles A. Reich

Touro Law Review

What makes a good judge or justice? The public has a need to know. But simplistic labels, such as "activist," "liberal" and "conservative," are both meaningless and misleading. Perhaps aformer law clerk can offer a different perspective.

I served with David J. Vann as law clerk to Justice Hugo L.Black during the momentous 1953 Term of the Supreme Court. This was the year when Brown v. Board of Education was decided. It was also the year when Chief Justice Vinson died and was replaced by the Governor of California, Earl Warren. And it was also a year in which the …

Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Per curiam--literally translated from Latin to "by the court"-is defined by Black's Law Dictionary as "[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion." Accordingly the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’ tenure, almost nine percent of the Court full opinions were per curiams. The prevalence …

Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira P. Robbins

Ira P. Robbins

The Lost Controversy Limitation Of The Federal Arbitration Act, Stephen R. Friedman

University of Richmond Law Review

No abstract provided.

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

Rodger Citron

No abstract provided.

Liberty Of The Exercise Of Religion In The Peace Of Westphalia, Gordon A. Christenson

Faculty Articles and Other Publications

This essay honors my dear friend of half a century, Burns Weston. In it, I take a fresh look at the backdrop and structure of toleration and religious freedom in the Peace of Westphalia of 1648 and in the American Constitution, with special focus on a recent unanimous Supreme Court decision of first impression. That important decision protects inner church freedoms in ecclesiastical employment, the so-called "ministerial exception" to federal and state employment discrimination laws.

"Of all the great world religions past and present," writes the noted historian Perez Zagorin, "Christianity has been by far the most intolerant." Violence and …

Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Introduction: How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it? There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

Using The Papers Of U.S. Supreme Court Justices: A Reflection, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, …

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Scholarly Works

No abstract provided.

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Touro Law Review

No abstract provided.

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …