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Supreme Court

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Articles 31 - 60 of 127

Full-Text Articles in Legal History

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.


Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf Nov 2014

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

Michael A Wolf

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.


Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen Aug 2014

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

James L. Kainen

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the ...


Dred Scott: A Nightmare For The Originalists, Sol Wachtler Jun 2014

Dred Scott: A Nightmare For The Originalists, Sol Wachtler

Touro Law Review

No abstract provided.


The Importance Of Interpretation: How The Language Of The Constitution Allows For Differing Opinions, Christina J. Banfield May 2014

The Importance Of Interpretation: How The Language Of The Constitution Allows For Differing Opinions, Christina J. Banfield

Chancellor’s Honors Program Projects

No abstract provided.


Court-Packing And Compromise, Barry Cushman Apr 2014

Court-Packing And Compromise, Barry Cushman

Barry Cushman

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer ...


An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen Jan 2014

An Argument For Incentivizing Voluntary Regulation Of The Fashion And Modeling Industries, Allison Clyne Tschannen

Washington University Jurisprudence Review

No abstract provided.


Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii Jan 2014

Holding The Bench Accountable: Judges Qua Representatives, John L. Warren Iii

Washington University Jurisprudence Review

No abstract provided.


Overrides: The Super-Study, Victoria Nourse Jan 2014

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters ...


Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser Jan 2014

Putting Progress Back Into Progressive: Reclaiming A Philosophy Of History For The Constitution, David Aram Kaiser

Washington University Jurisprudence Review

No abstract provided.


Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert Rodes Nov 2013

Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert Rodes

Robert Rodes

No abstract provided.


Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley Oct 2013

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.


Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann Jun 2013

Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann

Jeffrey B. Morris

No abstract provided.


Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse May 2013

Decision Theory And Babbitt V. Sweet Home: Skepticism About Norms, Discretion, And The Virtues Of Purposivism, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this writing, the author applies a “decision theory” of statutory interpretation, elaborated recently in the Yale Law Journal, to Professor William Eskridge’s illustrative case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In the course of this application, she takes issue with the conventional wisdom that purposivism, as a method of statutory interpretation, is inevitably a more virtuous model of statutory interpretation. First, the author questions whether we have a clear enough jurisprudential picture both of judicial discretion and legal as opposed to political normativity. Second, she argues that, under decision theory, Sweet Home is ...


Holmes And The Common Law: A Jury's Duty, Matthew P. Cline Mar 2013

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


A "Progressive Contraction Of Jurisdiction": The Making Of The Modern Supreme Court, Carolyn Shapiro Feb 2013

A "Progressive Contraction Of Jurisdiction": The Making Of The Modern Supreme Court, Carolyn Shapiro

125th Anniversary Materials

The Supreme Court in 1888 was in crisis. Its overall structure and responsibilities, created a century earlier by the Judiciary Act of 1789, were no longer adequate or appropriate. The Court had no control over its own docket - at the beginning of the 1888 term, there were 1,563 cases pending - and the justices’ responsibilities, which included circuit riding, were impossible to meet. Shaped as it was by a law almost as old as the country itself, the Supreme Court in 1888 - and the federal judicial system as a whole - would be barely recognizable to many today.

This chapter - which ...


Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock Feb 2013

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension ...


Commandeering And Constitutional Change, Jud Campbell Jan 2013

Commandeering And Constitutional Change, Jud Campbell

Law Faculty Publications

Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power ...


Court-Packing And Compromise, Barry Cushman Jan 2013

Court-Packing And Compromise, Barry Cushman

Journal Articles

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer ...


Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan Jan 2013

Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan

CMC Senior Theses

In my analysis of affirmative action policy, I began the search without having formed any opinion whatsoever. The topic was interesting to me, and after reading a mass of news editorials and their op-eds, I decided to take up the argument for myself. Other than the fact that I am a student, I have no stake in affirmative action policy. This paper relies primarily on the foremost half-dozen or so notable mismatch theory scholars, a close reading of an innumerable number of Supreme Court opinions, affirmative action related studies from higher education academics and policy institutes, and how historical executive ...


The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler Jan 2013

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

All Faculty Scholarship

This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional ...


Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison Jan 2013

Presidential Power, Historical Practice, And Legal Constraint, Curtis A. Bradley, Trevor W. Morrison

Faculty Scholarship

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. Some scholars have suggested that presidential authority has become “unbounded” by law, and is now governed only or primarily by politics. At the same time, there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion. Skepticism about law’s potential to constrain in this context is heightened by the customary nature of much ...


State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck Jan 2013

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that ...


The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman Jan 2013

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

Journal Articles

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 ...


Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum Jan 2013

Oasis Or Mirage: The Supreme Court's Thirst For Dictionaries In The Rehnquist And Roberts Eras, James J. Brudney, Lawrence Baum

Faculty Scholarship

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. We find that while textualist justices are heavy dictionary users, purposivist justices invoke dictionary definitions with comparable frequency. Further, dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court ...


Montesquieu's Theory Of Government And The Framing Of The American Constitution , Matthew P. Bergman Nov 2012

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

Pepperdine Law Review

No abstract provided.


Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk Nov 2012

Milking The New Sacred Cow: The Supreme Court Limits The Peremptory Challenge On Racial Grounds In Powers V. Ohio And Edmonson V. Leesville Concrete Co., Bradley R. Kirk

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 Nov 2012

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.


Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin Oct 2012

Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin

Jamin Raskin

No abstract provided.