Legal History Commons^™

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

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 …

John Quincy Adams Influence On Washington’S Farewell Address: A Critical Examination, Stephen Pierce

Undergraduate Research

John Quincy Adams is seen by the American public today as a failed one-term president. When one starts to see his diplomatic work and his service in Congress, however, he becomes one of the most important figures in American history. The diplomatic historian Samuel Flagg Bemis was in 1944 the first historian to suggest that Adams’ early writings influenced Washington’s Farewell Address. He looked through some of Adams’ early published writings and concluded that it was, “Conspicuous among the admonitions of the Farewell Address are: (1) to exalt patriotically the national words, America, American, Americans; (2) to beware of foreign …

Beyond The Borders Of The Law: Critical Legal Histories Of The North American West (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

The Faith Of My Fathers, Robert H. Jackson, John Q. Barrett

Faculty Publications

(Excerpt)

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson’s writing about religion in his life.

After Justice Jackson’s death in 1954, his secretary Elsie L. Douglas found the thirteen pages among his papers. She concluded that the pages were “undoubtedly prepared as part of his autobiography,” typed them up, and gave a file folder containing …

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

Robert M. Sanger

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 …

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

School of Law Conferences, Lectures & Events

No abstract provided.

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 in shaping …

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

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 public, …

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

Dickinson Law Review (2017-Present)

No abstract provided.

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

Dickinson Law Review (2017-Present)

No abstract provided.

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.

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.

Articles & Chapters

No abstract provided.

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

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 v. Smith …

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

Publications

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. …

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

The Supreme Court’S Devaluation Of U.S. Patents, Christopher M. Holman

Faculty Works

In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one …

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 encoding gridlock into the …

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

All Faculty Scholarship

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 preemption questions have …

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 definition of …

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

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

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

Touro Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.