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Full-Text Articles in Legal History

Due Process Supreme Court Appellate Division Third Department Jul 2019

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.


Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz Apr 2019

Oral Argument Tactics On The Supreme Court Bench: A Comparative Analysis Of Verbal Tools Used By Justices Sotomayor, Kagan, And Gorsuch, Corinne Cichowicz

Politics Honors Papers

Oral argument scholars like Adam Feldman have categorized the Supreme Court justices’ behavior during oral argument using the approach-based method, labeling each as one-sided, even-handed, or restrained. This approach is too narrowly constructed. Scholars sometimes categorize justices in terms of the tools they use, which include questions, hypotheticals, declarations, interruptions, tone of voice, and silence (Feldman 2018a). Neither of these methods alone produce a nuanced analysis of each justice’s actions during an individual case or across a Term. As the Court’s composition and dynamics are continuously changing, scholarship on oral argument needs to adapt to become more effective ...


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman Dec 2018

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman

D. A. Jeremy Telman


This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic.  It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities.  If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options.  The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.
Chisholm, the pre-Marshall Court’s most important constitutional ...


A New Philosophy In The Supreme Court, Robert M. Sanger Aug 2018

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

Robert M. Sanger

This is a positive article about the soon-to-be-newlyminted United States Supreme Court. No, this is not written by a guest columnist and, yes, the present author still holds progressive views regarding criminal justice. Assuming the Supreme Court and other branches of government continue to function – even if in less than an optimal fashion – we, as lawyers, have to work with what we have. We have a conservative Supreme Court with, presumably, conservative principles, and that is with which we must work. One of the characteristics often seen in individual Supreme Court Justices is the tendency to rise above the politics ...


Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger Jun 2018

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state.

Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority.

The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in ...


The Supreme Court Before John Marshall, Scott Douglas Gerber May 2018

The Supreme Court Before John Marshall, Scott Douglas Gerber

University of St. Thomas Law Journal

No abstract provided.


How Law Employs Historical Narratives: The Great Compromise As An Example, Louis J. Sirico Jr. Apr 2018

How Law Employs Historical Narratives: The Great Compromise As An Example, Louis J. Sirico Jr.

Pepperdine Law Review

Although historians base their interpretations on facts, they often use the same facts to tell a variety of stories. Of the varying stories, which gain acceptance by society and the courts? To explore this question, this Article examines the historiography of the Great Compromise. At the 1787 Constitutional Convention, the deputies debated how to elect members of the House and Senate. Should each state have equal representation or should each state have representation based on its population? The heavily populated states wanted population-based (proportional) representation while the less populated states wanted a one-state-one-vote system. After difficult debates, the Convention, by ...


A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden Jan 2018

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman Jan 2018

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role ...


Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan Oct 2017

Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan

Dickinson Law Review

No abstract provided.


Justice Blackmun And Individual Rights, Diane P. Wood Oct 2017

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the ...


Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore Oct 2017

Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore

Dickinson Law Review

No abstract provided.


Of Great Use And Interest: Constitutional Governance And Judicial Power- The History Of The California Supreme Court, Donald Warner Apr 2017

Of Great Use And Interest: Constitutional Governance And Judicial Power- The History Of The California Supreme Court, Donald Warner

The Journal of Appellate Practice and Process

No abstract provided.


The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux Jan 2017

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Articles

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases ...


Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner Jan 2017

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division ...


What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr. Jan 2017

What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.


The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr. Jan 2017

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.


The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman Oct 2016

The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman

Barry Cushman

This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually ...


Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla Jan 2016

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

Faculty Scholarship at Penn Law

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly ...


Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham Jan 2016

Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the ...


Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger Oct 2015

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

The Journal of Appellate Practice and Process

No abstract provided.


Book Review: Much Ado About Nothing: The Brethren: Inside The Supreme Court, Richard L. Aynes Jul 2015

Book Review: Much Ado About Nothing: The Brethren: Inside The Supreme Court, Richard L. Aynes

Akron Law Review

With such auspicious beginnings, The Brethren would appear to be a vital and important book which should be included upon the "required" reading list of those who wish to keep abreast of developments involving the Court and the evolution of constitutional law. Unfortunately, for anyone familiar with the decisions of the Court, the high expectations raised by The Brethren will not be met. Even when viewed in the most charitable light, the "insights" into the decision-making process to be gained from The Brethren are slight.2


Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul Apr 2015

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.


The Effect Of Buckhannon On The Awarding Of Attorney Fees, Leon Friedman Apr 2015

The Effect Of Buckhannon On The Awarding Of Attorney Fees, Leon Friedman

Touro Law Review

No abstract provided.


Procedural And Structural Obstacles In Challenging Aspects Of The Criminal Justice System, John Boston Apr 2015

Procedural And Structural Obstacles In Challenging Aspects Of The Criminal Justice System, John Boston

Touro Law Review

No abstract provided.


Is Zahn Gone? The Effect Of 28 U.S.C. § 1367 On The "No Aggregation Doctrine", Joseph J. Shannon Apr 2015

Is Zahn Gone? The Effect Of 28 U.S.C. § 1367 On The "No Aggregation Doctrine", Joseph J. Shannon

Touro Law Review

No abstract provided.


Justice Ginsburg's Call To Action: The Court, Congress, And The Lilly Ledbetter Fair Pay Act Of 2009, Youlan Xiu Apr 2015

Justice Ginsburg's Call To Action: The Court, Congress, And The Lilly Ledbetter Fair Pay Act Of 2009, Youlan Xiu

Senior Theses and Projects

No abstract provided.


The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson Apr 2015

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of ...


Federal Governmental Power: The Voting Rights Act, Michael C. Dorf Feb 2015

Federal Governmental Power: The Voting Rights Act, Michael C. Dorf

Michael C. Dorf

No abstract provided.