Finding Law, 2019 Duke Law School
Finding Law, Stephen E. Sachs
That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.
This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...
How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, 2018 University of Wyoming College of Law
How The U.S. Supreme Court Deemed The Grand Bargain Adequate Without Defining Adequacy.Pdf, Michael C. Duff
Michael C Duff
Appearing Unbiased About Presidential War Powers, 2018 University of St. Thomas, Minnesota
Appearing Unbiased About Presidential War Powers, Jide Nzelibe
University of St. Thomas Law Journal
No abstract provided.
Legislative Committee Systems: A Design Perspective, 2018 Indiana University Maurer School of Law
Legislative Committee Systems: A Design Perspective, Chase Stoddard
Indiana Journal of Constitutional Design
Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends ...
Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei
Master of Laws Research Papers Repository
Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...
Originalism And Congressional Power To Enforce The Fourteenth Amendment, 2018 Chicago-Kent College of Law
Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt
Washington and Lee Law Review Online
In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial ...
Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, 2018 Roger Williams University
Roger Williams University School Of Law And The Women's Law Society Present Women In Robes 10-4-2018, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, 2018 Penn State Dickinson Law
The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky
Dickinson Law Review
The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.
The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly ...
State Action And The Constitution's Middle Band, 2018 Georgetown University Law Center
State Action And The Constitution's Middle Band, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.
It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...
The Security Court, 2018 University of Maryland Francis King Carey School of Law
The Security Court, Matt Steilen
Maryland Law Review Online
The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...
The Constitution To The Constitution, 2018 Boston College Law School
The Constitution To The Constitution, Mary Sarah Bilder
Boston College Law School Faculty Papers
An overview of the reasons that the 1787 Constitution lacked the historical and legal assumptions that underlie our contemporary idea of "The Constitution." Appropriate for constitutional law courses and American history courses at the university and secondary levels.
Excerpted from essay originally published in The New England Quarterly as "The Ordeal and the Constitution" and lightly edited for coherence.
The Law Of Nations And The Constitution: An Early Modern Perspective, 2018 NYU School of Law
The Law Of Nations And The Constitution: An Early Modern Perspective, David M. Golove, Daniel Hulsebosch
New York University Public Law and Legal Theory Working Papers
Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ...
Law Library Blog (September 2018): Legal Beagle's Blog Archive, 2018 Roger Williams University
Law Library Blog (September 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Kentucky Criminal Law Reform In The Age Of Aquarius, 2018 University of Louisville Brandeis School of Law
Kentucky Criminal Law Reform In The Age Of Aquarius, Kurt X. Metzmeier
Kurt X. Metzmeier
The Operational And Administrative Militaries, 2018 University of Pennsylvania Law School
The Operational And Administrative Militaries, Mark P. Nevitt
Faculty Scholarship at Penn Law
This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the ...
A New Philosophy In The Supreme Court, 2018 Santa Barbara College of Law
A New Philosophy In The Supreme Court, Robert M. Sanger
Robert M. Sanger
The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, 2018 Chicago-Kent College of Law
The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt
Chicago-Kent Law Review
This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.
In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically ...
Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon
Chicago-Kent Law Review
This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work ...
The History, Meaning, And Use Of The Words Justice And Judge, 2018 Texas Fifth Court of Appeals
The History, Meaning, And Use Of The Words Justice And Judge, Jason Boatright
St. Mary's Law Journal
The words justice and judge have similar meanings because they have a common ancestry. They are derived from the same Latin term, jus, which is defined in dictionaries as “right” and “law.” However, those definitions of jus are so broad that they obscure the details of what the term meant when it formed the words that eventually became justice and judge. The etymology of jus reveals the kind of right and law it signified was related to the concepts of restriction and obligation. Vestiges of this sense of jus survived in the meaning of justice and judge.
Although justice and ...
The Republic In Long-Term Perspective, 2018 University of Michigan Law School
The Republic In Long-Term Perspective, Richard Primus
Michigan Law Review Online
Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably ...