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Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen 2020 Cleveland-Marshall College of Law

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the ...


Compelled Speech And The Irrelevance Of Controversy, Seana Valentine Shiffrin 2020 Pepperdine University

Compelled Speech And The Irrelevance Of Controversy, Seana Valentine Shiffrin

Pepperdine Law Review

NIFLA v. Becerra stealthily introduced a new First Amendment test for compelled speech that has injected chaos into the law of compelled disclosures. NIFLA reinterpreted the requirement that compelled disclosures contain only “purely factual and uncontroversial information” in a way that imbued independent force into the “uncontroversial” component of that test. Yet, the Court failed to supply criteria for what sort of purely factual information would fail to qualify as “uncontroversial information” and identified no important free speech concerns that this new prong protects. This Article distinguishes seven different interpretations of “uncontroversial information.” It then assesses them to ascertain whether ...


"Terms Of Heart": Judicial Style In Obergefell V. Hodges, Eliza S. Walker 2020 Boston College Law School

"Terms Of Heart": Judicial Style In Obergefell V. Hodges, Eliza S. Walker

Boston College Law Review

The law lives in language. The Supreme Court issues written opinions to inform the parties, the bar, and the public of its decision in each case. But the content of the decision cannot be divorced from the way it is written—that is, the style. Fundamental rights cases present a singular stylistic challenge both because they must reduce some ineffable liberty to language, and because they are the cases most likely to be read by the public. Justice Anthony Kennedy’s 2015 opinion in Obergefell v. Hodges was criticized not only for its outcome, but also for its supposedly non-legal ...


Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton 2020 William & Mary Law School

Kill Cammer: Securities Litigation Without Junk Science, J. B. Heaton

William & Mary Business Law Review

Securities litigation is a hotbed of junk science concerning market efficiency. This Article explains why and suggests a way out. In its 1988 decision in Basic v. Levinson, the Supreme Court endorsed the fraud on the market presumption for securities traded in an efficient market. Faced with the task of determining market efficiency, courts throughout the nation embraced the ad hoc speculations of a first-mover district court that proclaimed, in Cammer v. Bloom, how to allege (and presumably prove) facts that would do just that. The Cammer court’s analysis did not rely on financial economics for its notions, but ...


Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky 2020 William & Mary Law School

Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky

William & Mary Business Law Review

The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.

In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of ...


Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus, Nadia B. Ahmad 2020 Barry University of Law

Re-Reading Anita Bernstein's The Common Law Inside The Female Body From The Bottom Of The Well: Analysis Of The Central Park Five, Border Drownings, The Kavanaugh Confirmation, And The Coronavirus, Nadia B. Ahmad

Boston College Law Review

This Article provides a critique of the common law based on its impact on “the legal other” or what the late Professor Derrick Bell viewed as the faces from the bottom of the well. Professor Anita Bernstein notes common law’s liberatory capacity. While this interpretation of the common law is true to a certain extent, this reading can lead to an underestimation of the common law’s limitations. In looking at the case involving the Central Park Five, I argue that feminist jurisprudence can have an unintended disparate impact on vulnerable populations. Examples of migrant detention facilities and precarious ...


Models Of Pre-Promulgation Review Of Legislation, Rachel Myers 2020 Indiana University Maurer School of Law

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review ...


The Needle And The Damage Done: Mitchell V. Wisconsin'S Sweeping Rule For Warrantless Blood Draws On Unconscious Dui Suspects, Dyllan Taxman 2020 Law Clerk, United States Court of Appeals for the Eighth Circuit

The Needle And The Damage Done: Mitchell V. Wisconsin'S Sweeping Rule For Warrantless Blood Draws On Unconscious Dui Suspects, Dyllan Taxman

Notre Dame Law Review Reflection

In a normal year, the annual death toll from drunk driving accidents in the United States will roughly equal the total number of victims of the September 11th terrorist attacks and service members killed in the War on Terror combined. And while every state has enacted increasingly progressive laws to prevent and punish driving under the influence (DUI), episodes of drunk driving remain consistent year to year and less than one percent of self-reported drunk drivers are arrested. Drunken and drugged driving is, both in lay terms and legally speaking, a compelling public issue. But the Fourth Amendment of the ...


Translating The Constitution, Jack M. Balkin 2020 Yale Law School

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.


Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow 2020 Cornell Law School

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Notre Dame Law Review

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and ...


Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman 2020 Notre Dame Law School

Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble, Zachary B. Pohlman

Notre Dame Law Review

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the ...


Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa 2020 St. Mary's University

Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.


A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz 2020 University of Michigan Law School

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed ...


Fighting For Religious Freedom; Muhammad Ali And His Battle Against The U.S. Supreme Court, Jessica Wakelin 2020 William & Mary

Fighting For Religious Freedom; Muhammad Ali And His Battle Against The U.S. Supreme Court, Jessica Wakelin

Undergraduate Honors Theses

This thesis explores Muhammad Ali's 1971 draft evasion court case and the implications that his religion, race/views on racial issues, and surveillance by the FBI had on judicial proceedings. The Supreme Court was tasked with determining the sincerity of Ali's religious convictions and therefore if his claim to conscientiously object to war was valid. The combination of the different facets of Ali's identity tested the court's ability to be objective and thus, this thesis argues, his access to constitutionally granted religious freedoms were restricted.


The Passion Of John Paul Stevens, Linda Greenhouse 2020 Yale Law School

The Passion Of John Paul Stevens, Linda Greenhouse

Michigan Law Review

Review of John Paul Stevens' The Making of a Justice: Reflections on My First 94 Years.


Hyperpartisan Gerrymandering, Michael S. Kang 2020 Northwestern Pritzker School of Law

Hyperpartisan Gerrymandering, Michael S. Kang

Boston College Law Review

To modern observers of American politics, our current hyperpartisan era appears historically extreme, even bizarrely partisan. The preceding Cold War era was far less partisan and ideologically polarized. Spanning roughly from World War II through the 1980s, it offers a hopeful model for a better, less partisan American politics. However, this historical baseline is badly misleading. Partisanship for most of American history was much more similar to today’s hyperpartisanship than the Cold War. And legislative redistricting, for most of American history, was just as intensely partisan as today’s hyperpartisan gerrymandering. But it was precisely during the Cold War ...


Hot Bench: A Theory Of Appellate Adjudication, Terry Skolnik 2020 University of Ottowa, Faculty of Law

Hot Bench: A Theory Of Appellate Adjudication, Terry Skolnik

Boston College Law Review

The Supreme Court justices are talking. And they are talking more than ever during oral argument. The term “hot bench” implies that appellate judges engage in vibrant verbal exchanges with the parties during oral hearings. As part of the new oral argument, Supreme Court justices now speak more while the parties speak less, they interrupt both their colleagues and the parties (especially women) more frequently than in the past, and some of their questions advocate for positions rather than seek information. A hot bench raises crucial concerns about the nature of oral argument and appellate judges’ role in a constitutional ...


State V. Edstrom: No Warrant Needed For Minnesota Police To Conduct A Dog Sniff Outside Your Apartment, Stephen Grego 2020 University of St. Thomas, Minnesota

State V. Edstrom: No Warrant Needed For Minnesota Police To Conduct A Dog Sniff Outside Your Apartment, Stephen Grego

University of St. Thomas Law Journal

No abstract provided.


Justice By Lot: The Taboo Of Chance Verdicts In America, Michael Tackeff 2020 University of St. Thomas, Minnesota

Justice By Lot: The Taboo Of Chance Verdicts In America, Michael Tackeff

University of St. Thomas Law Journal

No abstract provided.


Standing Athwart History: Anti-Obergefell Popular Constitutionalism And Judicial Supremacy's Long-Term Triumph, Josh Hammer 2020 University of St. Thomas, Minnesota

Standing Athwart History: Anti-Obergefell Popular Constitutionalism And Judicial Supremacy's Long-Term Triumph, Josh Hammer

University of St. Thomas Law Journal

No abstract provided.


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