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Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin 2016 University of Maryland Francis King Carey School of Law

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab ...


The Riddle Of Harmless Error Revisited, John Greabe 2016 Franklin Pierce Law Center

The Riddle Of Harmless Error Revisited, John Greabe

John M Greabe

Half a century ago, in Chapman v. California, the Supreme Court imposed on appellate courts an obligation to vacate or reverse criminal judgments marred by constitutional error unless the government demonstrates that the error was harmless beyond a reasonable doubt.  But the Court did not explain the juridical status of this obligation or its relation to the federal harmless-error statute, 28 U.S.C. § 2111.  In the intervening years, commentators have struggled to make sense of Chapman.  Some see it as a constitutional mandate.  Others view it as an example of constitutional common law. In THE RIDDLE OF HARMLESS ERROR ...


Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson 2016 Columbia University

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.


Abortion, Informed Consent And Regulatory Spillover, Alex Stein, Katherine Shaw 2016 Cardozo Law School

Abortion, Informed Consent And Regulatory Spillover, Alex Stein, Katherine Shaw

Alex Stein

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understanding, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.
 
This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to fully inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possibility that such standards might cross state lines. Planned Parenthood ...


Inventing Equal Sovereignty, Leah M. Litman 2016 Harvard Law School

Inventing Equal Sovereignty, Leah M. Litman

Michigan Law Review

The Supreme Court’s 2013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the contours of the equal sovereignty doctrine and to evaluate whether it is a sound rule of constitutional federalism. The principle of equal sovereignty, as initially articulated by courts ...


Environmental Law Jurisprudence And Associate Justice Antonin Scalia's Legacy, James R. May 2016 Widener Law

Environmental Law Jurisprudence And Associate Justice Antonin Scalia's Legacy, James R. May

James R. May

Associate Justice Antonin Scalia left a long and indelible jurisprudential shadow on environmental law. Over his nearly 30 years on the bench, the former professor of administrative law shaped—sometimes single-handedly—a multitude of areas that serve as stock-and-trade of environmental, energy, and natural resources lawyering across the nation. This article focuses on standing, takings, and deference to environmental agency rulemaking.


Recognizing Indigenous Legal Values In Modern Copyright Law, Denise Brunsdon 2016 Student at Law

Recognizing Indigenous Legal Values In Modern Copyright Law, Denise Brunsdon

Western Journal of Legal Studies

Canada is a multijuridical nation with common, civil and Indigenous law as its founding legal traditions. The question of how to incorporate Indigenous legal traditions within the common law court system has been a struggle for white justices. When Indigenous legal traditions are considered, Canadian courts tend to hold them exclusively at issue for Indigenous peoples. This paper provides a helpful example of how Indigenous and historic colonial law can operate cooperatively. A legal system that more broadly complies with the spirit of the treaties – cooperation, shared jurisdiction, and mutual benefit – would result in a more inclusive, modern legal system ...


When A Promise Is Not A Promise: Georgia's Law On Non-Compete Agreements, As Interpreted By The Eleventh Circuit In Keener V. Convergys Corporation, Gives Rise To Comity And Federalism Concerns, Christopher D. David 2016 University of Georgia School of Law

When A Promise Is Not A Promise: Georgia's Law On Non-Compete Agreements, As Interpreted By The Eleventh Circuit In Keener V. Convergys Corporation, Gives Rise To Comity And Federalism Concerns, Christopher D. David

Journal of Intellectual Property Law

No abstract provided.


Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin 2016 University of Georgia School of Law

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Journal of Intellectual Property Law

No abstract provided.


Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead 2016 University of Akron

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

ConLawNOW

The First Amendment severely disfavors content-based restrictions on speech in public areas. In its 2015 decision in Reed v. Town of Gilbert, the Supreme Court clarified the test for determining whether a speech restriction is content-based, ratcheting up the number of laws subject to strict scrutiny. While this decision has been criticized by some, I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. I use anti-panhandling ordinances from three local jurisdictions ...


"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko 2016 Tonkon Torp LLP

"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko

Journal of Intellectual Property Law

No abstract provided.


Losing The Forest Among The Trees In The Festo Saga-Rationalizing The Doctrine Of Equivalents And Prosecution History Estoppel In View Of The Historical Justifications For Patent Protection, Ryan Thomas Grace 2016 University of Georgia School of Law

Losing The Forest Among The Trees In The Festo Saga-Rationalizing The Doctrine Of Equivalents And Prosecution History Estoppel In View Of The Historical Justifications For Patent Protection, Ryan Thomas Grace

Journal of Intellectual Property Law

No abstract provided.


The Teaching Of International Law, Myres S. McDougal 2016 Yale Law School

The Teaching Of International Law, Myres S. Mcdougal

Georgia Journal of International & Comparative Law

No abstract provided.


Foreign Policy And The Government Legal Adviser, Henry Darwin 2016 Foreign and Commonwealth Office

Foreign Policy And The Government Legal Adviser, Henry Darwin

Georgia Journal of International & Comparative Law

No abstract provided.


The Place Of Policy In International Law, Elihu Lauterpacht 2016 Cambridge University

The Place Of Policy In International Law, Elihu Lauterpacht

Georgia Journal of International & Comparative Law

No abstract provided.


The Place Of Policy In International Law, Oscar Schachter 2016 United Nations Institute for Training and Research

The Place Of Policy In International Law, Oscar Schachter

Georgia Journal of International & Comparative Law

No abstract provided.


The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson 2016 University of Georgia School of Law

The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson

Journal of Intellectual Property Law

No abstract provided.


Copyright Term Extensions, The Public Domain And Intertextuality Intertwined, Ashley Packard 2016 University of Houston-Clear Lake

Copyright Term Extensions, The Public Domain And Intertextuality Intertwined, Ashley Packard

Journal of Intellectual Property Law

No abstract provided.


Eldred V. Reno: An Example Of The Law Of Unintended Consequences, L. Ray Patterson 2016 University of Georgia School of Law

Eldred V. Reno: An Example Of The Law Of Unintended Consequences, L. Ray Patterson

Journal of Intellectual Property Law

No abstract provided.


Uncertainty And Unpredictability In Patent Litigation: The Time Is Ripe For A Consistent Claim Construction Methodology, Gretchen Ann Bender 2016 Morris, James, Hitchens & Williams, LLP

Uncertainty And Unpredictability In Patent Litigation: The Time Is Ripe For A Consistent Claim Construction Methodology, Gretchen Ann Bender

Journal of Intellectual Property Law

No abstract provided.


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