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Arguing With Friends, William Baude, Ryan D. Doerfler 2018 University of Chicago Law School

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the ...


The Past, Present, And Future Of Presidential Power, Saikrishna Bangalore Prakash 2018 University of St. Thomas, Minnesota

The Past, Present, And Future Of Presidential Power, Saikrishna Bangalore Prakash

University of St. Thomas Law Journal

No abstract provided.


The President And The Myth Of Judicial Supremacy, Michael Stokes Paulsen 2018 University of St. Thomas School of Law

The President And The Myth Of Judicial Supremacy, Michael Stokes Paulsen

University of St. Thomas Law Journal

No abstract provided.


Why I Can't Be Like Mike: At Least With Respect To His Overly Broad View Of Presidential Power To Act On Independent Constitutional Interpretation, Vikram David Amar 2018 University of St. Thomas, Minnesota

Why I Can't Be Like Mike: At Least With Respect To His Overly Broad View Of Presidential Power To Act On Independent Constitutional Interpretation, Vikram David Amar

University of St. Thomas Law Journal

No abstract provided.


After Life: Governmental Interests And The New Antiabortion Incrementalism, Mary Ziegler 2018 Florida State University College of Law.

After Life: Governmental Interests And The New Antiabortion Incrementalism, Mary Ziegler

University of Miami Law Review

In the aftermath of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, commentators have focused on the effect of antiabortion restrictions. But as this Article shows, Whole Woman’s Health is part of the story of an equally important tactic used by those chipping away at abortion rights: the recognition of new governmental interests justifying abortion regulations. Using original archival research, this Article traces the rise of this strategy and documents its influence on Supreme Court doctrine, making sense of what seem to be contradictory rulings on abortion.

How should courts deal with novel legislative purposes ...


Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson 2018 University of Pittsburgh School of Law

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

University of Miami Law Review

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s ...


Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema 2018 Northwestern Pritzker School of Law

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Boston College Law Review

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a ...


At Oral Argument, Supreme Court Weighs Immigrant Detention, Peter Margulies 2018 Roger Williams University School of Law

At Oral Argument, Supreme Court Weighs Immigrant Detention, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt 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 ...


Interruptions At Supreme Court Confirmation Hearings Have Been Rising Since The 1980s, Paul M. Collins Jr., Lori A. Ringhand 2018 University of Massachusetts Amherst

Interruptions At Supreme Court Confirmation Hearings Have Been Rising Since The 1980s, Paul M. Collins Jr., Lori A. Ringhand

Popular Media

As scholars of the confirmation process, we aim to measure what is measurable, in the hope that data can inform our more subjective perceptions of politics. And one measurable feature of Kavanaugh’s testimony is the striking number of times he interrupted the senators to challenge their comments or force his own point. Here, the historical record can shed some light. This article reviews the history of interruptions during Supreme Court confirmation hearings from 1939 to 2010.


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown Law

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

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 ...


Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson 2018 University of Michigan Law School

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation ...


The Love In Loving: Overcoming Artificial Racial Barriers, Justice Leah Ward Sears (Ret.), Sasha N. Greenberg 2018 Smith, Gambrell & Russell, LLP

The Love In Loving: Overcoming Artificial Racial Barriers, Justice Leah Ward Sears (Ret.), Sasha N. Greenberg

Notre Dame Law Review Online

The rewritten opinion of Loving v. Virginia in Feminist Judgments: Rewritten Opinions of the United States Supreme Court is in stark contrast to the original. Professor Teri McMurtry-Chubb’s judgment for the court “unmasks—and renders unavoidable— the link between America’s history of White supremacy and patriarchy and America’s legal structures for regulating marriage and families.” The feminist opinion relies almost entirely on legal, social, and cultural history, in particular the history of marriage and family relationships among and between Blacks and Whites during the colonial, antebellum, and postbellum eras in the American South.

For the authors of ...


Looking To The Litigant: Reaction Essay To Feminist Judgments: Rewritten Opinions Of The United States Supreme Court, Claire B. Wofford 2018 College of Charleston

Looking To The Litigant: Reaction Essay To Feminist Judgments: Rewritten Opinions Of The United States Supreme Court, Claire B. Wofford

Notre Dame Law Review Online

Feminist Judgments’s focus on jurists alone is not unusual. My own discipline has devoted a great deal of study to understanding why and how the justices of the U.S. Supreme Court make the decisions they do. Some of the scholarship has even examined whether women judges might operate differently than their male counterparts, though the findings have been mixed at best. The emphasis, moreover, is understandable and laudable, as it is jurists who have the final say on the content of law.

Emphasizing judicial behavior, however, unfortunately overlooks the fundamental passivity of the courts. As much as they ...


Extending The Critical Rereading Project, Gabrielle Appleby, Rosalind Dixon 2018 University of New South Wales Gilbert + Tobin Centre of Public Law

Extending The Critical Rereading Project, Gabrielle Appleby, Rosalind Dixon

Notre Dame Law Review Online

In this reflection, we want to explain a project in Australia that extends the feminist judgments project and adapts it specifically for the purpose of teaching critical theory, critical legal thinking, and the assumptions inherent in the legal method.


Feminist Judgments And The Future Of Reproductive Justice, Sarah Weddington 2018 Notre Dame Law School

Feminist Judgments And The Future Of Reproductive Justice, Sarah Weddington

Notre Dame Law Review Online

Roe v. Wade is one of the twenty-five Supreme Court cases that has been rewritten from a feminist perspective by an imaginative group of law professors and lawyers. This Essay is based on remarks made by Ms. Weddington at a panel discussion held at Temple University Beasley School of Law on November 13, 2017.


Feminist Judgments & #Metoo, Margaret E. Johnson 2018 University of Baltimore School of Law

Feminist Judgments & #Metoo, Margaret E. Johnson

Notre Dame Law Review Online

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate genderjustice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.


Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford 2018 University of Nevada, Las Vegas, William S. Boyd School of Law

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Notre Dame Law Review Online

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O’Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very ...


Feminist Judgments And Women's Rights At Work, Gillian Thomas 2018 ACLU Women’s Rights Project

Feminist Judgments And Women's Rights At Work, Gillian Thomas

Notre Dame Law Review Online

The history of the law’s treatment of working women is largely a history of the law’s treatment of women’s bodies. Overwhelmingly created by male judges, that jurisprudence considers women from a remove—their physicality, their reproductive capacity, their stature, their sexuality—eclipsing meaningful consideration of their lived experience, on or off the job. As vividly illustrated by so many of the alternative rulings contained in Feminist Judgments, that erasure resulted in Supreme Court decisions that—even when they came out the “right” way, that is, in favor of the female litigant—squandered opportunities for advancing sex equality ...


Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino 2018 University of Cincinnati College of Law

Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino

Notre Dame Law Review Online

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail.

The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in which ...


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