Texas, The Death Penalty, And Intellectual Disability,
2019
St. Mary's University School of Law
Texas, The Death Penalty, And Intellectual Disability, Megan Green
St. Mary's Law Journal
Abstract forthcoming
Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery,
2019
Texas A&M University School of Law
Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce
Faculty Scholarship
What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …
Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals,
2019
Georgetown University Law Center
Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone
Georgetown Law Faculty Publications and Other Works
This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of …
Table Of Contents,
2019
Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation,
2019
William & Mary Law School
Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins
Neal E. Devins
With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …
The Steel Seizure Case: One Of A Kind?,
2019
William & Mary Law School
The Steel Seizure Case: One Of A Kind?, Neal Devins, Louis Fisher
Neal E. Devins
No abstract provided.
The Majoritarian Rehnquist Court?,
2019
William & Mary Law School
The Last Word Debate: How Social And Political Forces Shape Constitutional Values,
2019
William & Mary Law School
The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins
Neal E. Devins
No abstract provided.
The D'Oh! Of Popular Constiutitonalism,
2019
William & Mary Law School
The D'Oh! Of Popular Constiutitonalism, Neal Devins
Neal E. Devins
No abstract provided.
The Amicus Machine,
2019
William & Mary Law School
The Amicus Machine, Allison Orr Larsen, Neal Devins
Neal E. Devins
The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …
Should The Supreme Court Fear Congress?,
2019
William & Mary Law School
Should The Supreme Court Fear Congress?, Neal Devins
Neal E. Devins
No abstract provided.
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants,
2019
William & Mary Law School
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants, Neal Devins
Neal E. Devins
No abstract provided.
Split Definitive,
2019
William & Mary Law School
Split Definitive, Lawrence Baum, Neal Devins
Neal E. Devins
For the first time in a century, the Supreme Court is divided solely by political party.
Social Meaning And School Vouchers,
2019
William & Mary Law School
Reverse Advisory Opinions,
2019
William & Mary Law School
Reverse Advisory Opinions, Neal Devins, Saikrishna B. Prakash
Neal E. Devins
No abstract provided.
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency,
2019
William & Mary Law School
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Neal E. Devins
No abstract provided.
Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other),
2019
William & Mary Law School
Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins
Neal E. Devins
This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …
The Structural Safeguards Of Federal Jurisdiction,
2019
William & Mary Law School
The Structural Safeguards Of Federal Jurisdiction, Tara Leigh Grove
Tara L. Grove
Scholars have long debated Congress’s power to curb federal jurisdiction and have consistently assumed that the constitutional limits on Congress’s authority (if any) must be judicially enforceable and found in the text and structure of Article III. In this Article, I challenge that fundamental assumption. I argue that the primary constitutional protection for the federal judiciary lies instead in the bicameralism and presentment requirements of Article I. These Article I lawmaking procedures give competing political factions (even political minorities) considerable power to “veto” legislation. Drawing on recent social science and legal scholarship, I argue that political factions are particularly likely …
The Structural Case For Vertical Maximalism,
2019
William & Mary Law School
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Tara L. Grove
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
Justice Scalia's Other Standing Legacy,
2019
William & Mary Law School
Justice Scalia's Other Standing Legacy, Tara Leigh Grove
Tara L. Grove
No abstract provided.
