Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, 2010 Harvard Law School
Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen
Michigan Law Review First Impressions
In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee ...
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance ...
Equitable Balancing In The Age Of Statutes, 2010 Roger Williams University School of Law
Equitable Balancing In The Age Of Statutes, Jared Goldstein
Law Faculty Scholarship
No abstract provided.
Contingent Equal Protection: Reaching For Equality After Ricci And Pics, 2010 University of Colorado Law School
Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent ...
Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, 2010 University of Colorado Law School
Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan
No abstract provided.
Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, 2010 University of Colorado Law School
Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux
Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is ...
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, 2010 University of Colorado Law School
Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks
This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the ...
Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, 2010 University of Colorado Law School
Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart
The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news ...
Barber V. Thomas: The Supreme Court's Interpretation Of The Federal Good Time Credits Statute Is Undermining Sentencing Reform, 2010 University of the Pacific, McGeorge School of Law
Barber V. Thomas: The Supreme Court's Interpretation Of The Federal Good Time Credits Statute Is Undermining Sentencing Reform, Max Hellman
McGeorge Law Review
No abstract provided.
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants, 2010 William & Mary Law School
Talk Loudly And Carry A Small Stick: The Supreme Court And Enemy Combatants, Neal Devins
No abstract provided.
What Does Graham Mean In Michigan?, 2010 University of Michigan Law School
What Does Graham Mean In Michigan?, Kimberly A. Thomas
In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.
Constitutional Expectations, 2010 University of Michigan Law School
Constitutional Expectations, Richard A. Primus
The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature ...
Issue 2: Table Of Contents, 2010 University of Richmond
Issue 2: Table Of Contents
University of Richmond Law Review
No abstract provided.
Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, 2010 University of Miami School of Law
Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin
No abstract provided.
What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, 2010 University of Cincinnati College of Law
What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy
Faculty Articles and Other Publications
This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This ...
Shining A Light On Democracy's Dark Lagoon, 2010 University of Colorado Law School
Shining A Light On Democracy's Dark Lagoon, Helen Norton
Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices ...
The Pleading Problem In Antitrust Cases And Beyond, 2010 University of Pennsylvania Carey Law School
The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp
Faculty Scholarship at Penn Law
In its Twombly decision the Supreme Court held that an antitrust complaint failed because its allegations did not include enough “factual matter” to justify proceeding to discovery. Two years later the Court extended this new pleading standard to federal complaints generally. Twombly’s broad language has led to a broad rewriting of federal pleading doctrine.
Naked market division conspiracies such as the one pled in Twombly must be kept secret because antitrust enforcers will prosecute them when they are detected. This inherent secrecy, which the Supreme Court did not discuss, has dire consequences for pleading if too much factual specificity ...
Dr. Miles's Orphans: Vertical Conspiracy And Consignment In The Wake Of Leegin, 2010 University of Florida Levin College of Law
Dr. Miles's Orphans: Vertical Conspiracy And Consignment In The Wake Of Leegin, Jeffrey L. Harrison
UF Law Faculty Publications
When the Supreme Court overturns a well-established case, the impact extends well beyond that ruling. Cases that have survived for extended periods of time typically spawn complementary cases. These complementary cases protect the ruling in the principal case from erosion by the imagination of business planners, lawyers, scholars, and judges. Or, these complementary cases may be the cases that narrow the rule in the principal case when the Court wants to temper the effect of—but not overrule—its prior decision. When the principal case is, however, overturned, both of these types of cases become orphans. Without the parent case ...
Book Review Of Melvin I. Urofsky's Louis D. Brandeis: A Life, 2010 New York Law School
Book Review Of Melvin I. Urofsky's Louis D. Brandeis: A Life, Edward A. Purcell Jr.
No abstract provided.
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, 2010 University of Baltimore School of Law
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay
All Faculty Scholarship
This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale ...