Bottlenecks And Antidiscrimination Theory,
2014
University of Michigan Law School
Bottlenecks And Antidiscrimination Theory, Samuel R. Bagenstos
Reviews
In American antidiscrimination theory, two positions have competed for primacy. One, anticlassification, sees the proper goal of antidiscrimination law as being essentially individualistic. The problem with discrimination, in this view, is that it classifies individuals on the basis of an irrelevant or arbitrary characteristic—and that it, as a result, denies them opportunities for which they are otherwise individually qualified. The other position, antisubordination, sees the proper goal of antidiscrimination law as being more group oriented. The problem with discrimination, in this view, is that it helps constitute a social system in which particular groups are systematically subject to disadvantage and …
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review,
2014
Chicago-Kent College of Law
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
Chicago-Kent Law Review
This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance …
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law,
2014
Chicago-Kent College of Law
Original Intent And The Fourteenth Amendment: Into The Black Hole Of Constitutional Law, Paul Finkelman
Chicago-Kent Law Review
This article explores and examines William E. Nelson’s masterful study of the origins and adoption of the Fourteenth Amendment, The Fourteenth Amendment: From Political Principal to Judicial Doctrine (1988). The article explains that a quarter of a century after he wrote this book, Nelson’s study of the origins and adoption of the Amendment remains the best exploration of these issues. His book illustrates the difficulties of determining the “original intent” of the framers of this complicated and complex Amendment. At the same time, however, Nelson demonstrates that for many issues we can come to a strong understanding of the goals …
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White,
2014
Chicago-Kent College of Law
Rejecting The Legal Process Theory Joker: Bill Nelson's Scholarship On Judge Edward Weinfeld And Justice Byron White, Brad Snyder
Chicago-Kent Law Review
My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that …
The Burdens Of Pleading,
2014
Benjamin N. Cardozo School of Law
The Burdens Of Pleading, Alexander A. Reinert
Articles
To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal Rules—to engage in a merits-based analysis at the pleading stage based on their “judicial experience and common sense.” Judges are expected to engage in this inquiry with only the factual allegations in the complaint at their disposal. Putting aside the difficulty of conducting this analysis under the best of circumstances, our federal judges have extremely limited judicial experience to apply to merits-based decisions. The number of trials, the ultimate arbiter of merit, has fallen precipitously in the past fifty years. Trials …
The Bond Court's Institutional Truce,
2014
University of Michigan Law School
The Bond Court's Institutional Truce, Monica Hakimi
Articles
As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …
Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring,
2014
University of Dayton
Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo
Educational Leadership Faculty Publications
A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools1 to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,2 a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,3 the Court struck down the Defense …
Pay-For-Delay Settlements In The
Wake Of Actavis,
2014
University of Michigan Law School
Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff
Michigan Telecommunications & Technology Law Review
“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …
Issue 4: Table Of Contents,
2014
University of Richmond
Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause,
2014
Boston University School of Law
Constitutional Exaptation, Political Dysfunction, And The Recess Appointments Clause, Jay D. Wexler
Faculty Scholarship
The so-called Recess Appointments Clause of the Constitution provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”1 As of only a few years ago, I considered this clause so minor and quirky that I included it in a book about ten of the Constitution’s “oddest” clauses, right alongside such clearly weird provisions as the Title of Nobility Clause and the Third Amendment.2 Though I recognized that the Recess Appointments Clause was probably the least odd …
Dismissing Deterrence,
2014
University of Michigan Law School
Dismissing Deterrence, Ellen D. Katz
Articles
The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.
Federalism And Phantom Economic Rights In Nfib V. Sibelius,
2014
University of Baltimore School of Law
Federalism And Phantom Economic Rights In Nfib V. Sibelius, Matthew Lindsay
All Faculty Scholarship
Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. …
Making The Right Call For Confrontation At Felony Sentencing,
2014
University of Idaho College of Law
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
University of Michigan Journal of Law Reform
Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …
The Two Faces Of Janus: The Jurisprudential Past And New Beginning Of Rule 10b-5,
2014
University of Michigan Law School
The Two Faces Of Janus: The Jurisprudential Past And New Beginning Of Rule 10b-5, John Patrick Clayton
University of Michigan Journal of Law Reform
Section 10(b) of the Securities Exchange Act and its implementing Rule 10b-5 are the primary antifraud provisions for both private and public enforcement of the federal securities laws. Neither the statute nor the rule expressly provides for a private right of action, but federal courts have long recognized such an implied right, and the Securities and Exchange Commission has supported the implied private right of action as a “necessary supplement” to its own efforts. However, after a decade of applying an expansive interpretation to Section 10(b), in the early 1970s the U.S. Supreme Court began to narrowly interpret this implied …
The Tools Of Political Dissent: A First Amendment Guide To Gun Registries,
2014
University of Michigan Law School
The Tools Of Political Dissent: A First Amendment Guide To Gun Registries, Thomas E. Kadri
Michigan Law Review First Impressions
On December 23, 2012, a newspaper in upstate New York published a provocative map. On it appeared the names and addresses of thousands of gun owners in nearby counties, all precisely pinpointed for the world to browse. The source of this information: publicly available data drawn from the state’s gun registry. Legislators were quick to respond. Within a month, a new law offered gun owners the chance to permanently remove their identities from the registry with a simple call to their county clerk. The map raised interesting questions about broadcasting personal information, but a more fundamental question remains: Are these …
Buying West Florida From The Indians: The Forbes Purchase And Mitchel V. United States (1835),
2014
University of Dayton
Buying West Florida From The Indians: The Forbes Purchase And Mitchel V. United States (1835), Blake Watson
School of Law Faculty Publications
This article takes an in-depth look at Mitchel v. United States. In order to place the Forbes Purchase in historical context, Part I provides an overview of European and American control of Florida. Part II details the events that led to the sale by the Creek and Seminole Indians of nearly a million and a half acres in 1804-1806 and 1810-1811. Part III describes the efforts of the purchasers and subsequent grantees to obtain confirmation of the Forbes Purchase. Part IV details the decisions in the Mitchel litigation. The purchase is compared in Part V to other transfers of Indian …
“Government By A Few Conservative Men”: An Examination Of Louis Boudin’S Understanding Of The Abuse Of The Judicial Power And The Decline Of Judicial Restraint By The Supreme Court,
2014
Trinity College, Hartford Connecticut
“Government By A Few Conservative Men”: An Examination Of Louis Boudin’S Understanding Of The Abuse Of The Judicial Power And The Decline Of Judicial Restraint By The Supreme Court, Sarah A. Ballinger
Senior Theses and Projects
For the first 150 years of the existence of the judicial power, it was liberals who advocated for the limited role that the Supreme Court should play in America’s constitutional democracy. Since the 1960’s and the Civil Rights Movement, there has been an increase in liberal judicial activism. This thesis seeks to explore the progression of judicial restraint and activism over the history of the Supreme Court through the eyes of Louis Boudin, a constitutional expert writing in the 1930’s. Boudin, a radical liberal, asserts in Government By Judiciary that the judicial branch has been constantly expanding its own power …
The Dangers Of Press Clause Dicta,
2014
BYU Law
The Dangers Of Press Clause Dicta, Ronnell Andersen Jones
Faculty Scholarship
The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars …
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts,
2014
U.S. District Court for the Central District of California
Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher
Michigan Law Review
Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures …
In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence,
2014
William & Mary Law School
In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales
William & Mary Bill of Rights Journal
During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges …
