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Reciprocal Legitimation In The Federal Courts System: Racial Segregation, Reapportionment, And Obergefell Appendix A, Neil S. Siegel 2017 Duke Law School

Reciprocal Legitimation In The Federal Courts System: Racial Segregation, Reapportionment, And Obergefell Appendix A, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and ...


Construction, Originalist Interpretation And The Complete Constitution, Richard Kay 2016 Selected Works

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

 In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or ...


The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao 2016 Duke Law

The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and ...


The United States, Developing Countries And The Issue Of Intra-Enterprise Agreements, Joel Davidow 2016 University of Georgia School of Law

The United States, Developing Countries And The Issue Of Intra-Enterprise Agreements, Joel Davidow

Georgia Journal of International & Comparative Law

Antitrust issues have become one of the main concern of the world economy community and the United Nations. For many years, the United Nations Conference on Trade and Development has multiplied the meetings to discuss the relationship between transnational enterprises and international investment and has engaged in reflections on methods to avoid a decline in international investment. However, these meetings failed to resolve the fundamental issue of the impact of international antitrust principles on restrictive arrangements between a foreign parent corporation and its local subsidiary, particularly where that subsidiary is in a developing country. If applied, multinational enterprises would be ...


Further Punishing The Wrongfully Accused: Manuel V. City Of Joliet, The Fourth Amendment, And Malicious Prosecution, James R. Holley 2016 Duke Law

Further Punishing The Wrongfully Accused: Manuel V. City Of Joliet, The Fourth Amendment, And Malicious Prosecution, James R. Holley

Duke Journal of Constitutional Law & Public Policy Sidebar

Manuel v. City of Joliet is before the Supreme Court to determine whether detention before trial without probable cause is a violation of the Fourth Amendment, or whether it is merely a violation of the Due Process Clause. Every circuit except the Seventh Circuit treats this type of detention as being a violation of the Fourth Amendment; only the Seventh Circuit considers this question under the Due Process Clause. This commentary argues that the Supreme Court should look to its precedent, which clearly treats pretrial detention without probable cause as being a Fourth Amendment issue, and reverse the Seventh Circuit ...


Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll 2016 Villanova University School of Law

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michael W. Carroll

In eBay v. MercExchange, the Supreme Court correctly rejected the Federal Circuit's general rule requiring that a permanent injunction follow from a finding that a patent is valid and infringed. Recognizing that one size does not fit all in patent law, the Court returned traditional equitable discretion to the district courts. With this discretion, district courts can now deploy remedies for patent infringement that are sensitive to relevant differences among industries, technologies, and entities. This Essay sets the Court's rejection of a uniform remedial regime in a larger context concerning the role of uniformity in patent law. It ...


Arbitrary Law Enforcement Is Unreasonable: Whren's Failure To Hold Police Accountable For Traffic Enforcement Policies, Jonathan Witmer-Rich 2016 Cleveland-Marshall College of Law, Cleveland State University

Arbitrary Law Enforcement Is Unreasonable: Whren's Failure To Hold Police Accountable For Traffic Enforcement Policies, Jonathan Witmer-Rich

Jonathan Witmer-Rich

Whren v. United States is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. Criticism not withstanding, the Court has not retreated from Whren, but continues to repeat its core holding.

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article—the prohibition against arbitrary search and seizure. Part III explains how arbitrariness ...


Mississippi V. Tennessee: Resolving An Interstate Groundwater Dispute, Peter G. Berris 2016 Duke Law

Mississippi V. Tennessee: Resolving An Interstate Groundwater Dispute, Peter G. Berris

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary explores the legal background and potential ramifications of Mississippi v. Tennessee: an original jurisdiction case involving a dispute over aquifer groundwater. Although the Supreme Court has addressed water disputes between states in the past, Mississippi v. Tennessee is the first such case to center exclusively on groundwater. As a result the Court has the opportunity to resolve a question of great relevance in an era where access to water is a recurring news story; is aquifer groundwater an interstate resource subject to equitable apportionment, or an intrastate resource subject to state sovereign ownership.


A Brave New Borderless World: Standardization Would End Decades Of Inconsistency In Determining Proper Personal Jurisdiction In Cyberspace Cases, Jonathan Spencer Barnard 2016 Seattle University School of Law

A Brave New Borderless World: Standardization Would End Decades Of Inconsistency In Determining Proper Personal Jurisdiction In Cyberspace Cases, Jonathan Spencer Barnard

Seattle University Law Review

While various courts and numerous legal professionals have addressed the issue of inconsistent application of personal jurisdiction in cyberspace cases, the Supreme Court has yet to discuss the impact that technology might have on the analysis of personal jurisdiction; thus, many details remain unresolved. This Note examines the varying jurisdictional splits between the lower district courts, the courts of appeals, and the federal circuit court of appeals in determining the proper approach to take when dealing with Internet jurisdiction. After an examination of several key cases, this Note will explain why the Supreme Court, or the Legislature, should adopt an ...


State Not Required To Provide Counsel On Appeal To Supreme Court, 2016 St. John's University School of Law

State Not Required To Provide Counsel On Appeal To Supreme Court

The Catholic Lawyer

No abstract provided.


"Allen Charge" Used In Absence Of Deadlocked Jury, 2016 St. John's University School of Law

"Allen Charge" Used In Absence Of Deadlocked Jury

The Catholic Lawyer

No abstract provided.


Ordinance Allowing Search Without A Warrant Held Invalid, 2016 St. John's University School of Law

Ordinance Allowing Search Without A Warrant Held Invalid

The Catholic Lawyer

No abstract provided.


The First Amendment And Canon Law, Brendan F. Brown 2016 St. John's University School of Law

The First Amendment And Canon Law, Brendan F. Brown

The Catholic Lawyer

No abstract provided.


The Legality Of De Facto Segregation, Charles E. Rice 2016 St. John's University School of Law

The Legality Of De Facto Segregation, Charles E. Rice

The Catholic Lawyer

No abstract provided.


Obscenity: Significance Of Literary Value, 2016 St. John's University School of Law

Obscenity: Significance Of Literary Value

The Catholic Lawyer

No abstract provided.


The Lawyer And Civil Rights, Joseph T. Tinnelly, C.M. 2016 St. John's University School of Law

The Lawyer And Civil Rights, Joseph T. Tinnelly, C.M.

The Catholic Lawyer

No abstract provided.


Recent Decision: Conviction Under Discriminatory City Ordinance Held "State Action", 2016 St. John's University School of Law

Recent Decision: Conviction Under Discriminatory City Ordinance Held "State Action"

The Catholic Lawyer

No abstract provided.


Recent Decision: State Anti-Discrimination Act Not A Burden On Interstate Commerce, 2016 St. John's University School of Law

Recent Decision: State Anti-Discrimination Act Not A Burden On Interstate Commerce

The Catholic Lawyer

No abstract provided.


Recent Decision: With All Deliberate Speed - A Changing Concept In Desegregation, 2016 St. John's University School of Law

Recent Decision: With All Deliberate Speed - A Changing Concept In Desegregation

The Catholic Lawyer

No abstract provided.


Honoring Dan Meltzer, Bradford R. Clark 2016 George Washington University Law School

Honoring Dan Meltzer, Bradford R. Clark

Notre Dame Law Review

Dan Meltzer was a giant in the field of Federal Courts, and it is hard to overstate his influence on its development. He taught Federal Courts at Harvard Law School and was a long-time co-author of Hart & Wechsler’s The Federal Courts and the Federal System (“Hart & Wechsler ”), the casebook that created the field and shaped how generations of judges, lawyers, and scholars think about complex questions of federal jurisdiction. In addition, Dan enriched the field immeasurably by writing seminal articles on a wide range of Federal Courts topics. His work was characterized by deep knowledge of the law, the ...


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