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National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey 2017 Duke Law

National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey

Duke Journal of Constitutional Law & Public Policy Sidebar

National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the ...


Political Science Professor’S Book Gets Chinese Translation, 2017 Selected Works

Political Science Professor’S Book Gets Chinese Translation

Gary L. Rose

A Chinese firm, Rightol Media Limited, will publish a translated version of Sacred Heart University Professor Gary Rose's book, Shaping a Nation, which delves into 25 Supreme Court cases that had major effects on the United States.


Travel Ban Update: Without Addressing The Merits, The Supreme Court Stays Injunction Pending Further Proceedings, Peter Margulies 2017 Roger Williams University School of Law

Travel Ban Update: Without Addressing The Merits, The Supreme Court Stays Injunction Pending Further Proceedings, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons 2017 Duke Law

Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons

Duke Journal of Constitutional Law & Public Policy Sidebar

Sessions v. Dimaya seeks to determine whether the residual clause of a criminal provision, incorporated by reference into a civil immigration law, is void for vagueness. Although there is an instance of the Supreme Court applying the criminal vagueness standard to an immigration statute resulting in deportation, the United States argues that immigration law is not subject to that vagueness standard because it is civil and not criminal. This commentary argues that Sessions v. Dimaya presents the Supreme Court with an opportunity to conform with its precedents, further the principles underlying vagueness doctrine, and appear to apply judicial rules consistently ...


Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang 2017 Emory University School of Law

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government ...


Has Nihilism Politicized The Supreme Court Nomination Process?, Bruce Ledewitz 2017 Brigham Young University Law School

Has Nihilism Politicized The Supreme Court Nomination Process?, Bruce Ledewitz

Brigham Young University Journal of Public Law

No abstract provided.


Los Derechos Jurisprudenciales De La Mujer Y El Activismo Judicial.Pdf, Daniel Fernando Gómez Tamayo 2017 Selected Works

Los Derechos Jurisprudenciales De La Mujer Y El Activismo Judicial.Pdf, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo PhD Canon Law.

Debate constitucional y argumentativo: Sana crítica de las pruebas con respecto a la despenalización del Aborto en Estados Unidos y Colombia.


What Got Into The Court? What Happens Next?, Linda Greenhouse 2017 University of Maine School of Law

What Got Into The Court? What Happens Next?, Linda Greenhouse

Maine Law Review

We are now in the midst of an amazing Supreme Court term--more than half-way through on the calendar, far short of halfway through in terms of what has yet to be decided. It's been a roller-coaster term of sorts, beginning with the highly unusual early-September argument in the campaign finance case, followed by a rather quiet fall and winter, and then ending with an April sitting during which the Court will consider, in the context of the country's response to terrorism, cases that are likely to go quite far to define for the modern age the meaning of ...


Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos 2017 University of Michigan Law School

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we ...


Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso 2017 University of Miami Law School

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living ...


The Expansion Of Charitable Choice, The Faith Based Initiative, And The Supreme Court's Establishment Clause Jurisprudence, Steven Fitzgerald 2017 St. John's University School of Law

The Expansion Of Charitable Choice, The Faith Based Initiative, And The Supreme Court's Establishment Clause Jurisprudence, Steven Fitzgerald

The Catholic Lawyer

No abstract provided.


Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond 2017 University of Maine School of Law

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted ...


Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan 2017 University of Maine School of Law

Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan

Maine Law Review

The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was ...


Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu 2017 University of Maine School of Law

Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu

Maine Law Review

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper ...


The Supreme Court And Religious Liberty, Douglas Laycock 2017 St. John's University School of Law

The Supreme Court And Religious Liberty, Douglas Laycock

The Catholic Lawyer

No abstract provided.


United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley 2017 University of Maine School of Law

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the ...


Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh 2017 University of Maine School of Law

Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh

Maine Law Review

Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to ...


Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne 2017 University of Maine School of Law

Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne

Maine Law Review

The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith ...


Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan McDermott 2017 University of Wisconsin School of Law

Justice Scalia’S Bankruptcy Jurisprudence: The Right Judicial Philosophy For The Modern Bankruptcy Code?, Megan Mcdermott

Utah Law Review

This Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.

Specifically ...


Understanding Nautilus's Reasonable-Certainty Standard: Requirements For Linguistic And Physical Definiteness Of Patent Claims, Gary M. Fox 2017 University of Michigan Law School

Understanding Nautilus's Reasonable-Certainty Standard: Requirements For Linguistic And Physical Definiteness Of Patent Claims, Gary M. Fox

Michigan Law Review

Patent applicants must satisfy a variety of requirements to obtain a patent from the U.S. Patent and Trademark Office (USPTO). The definiteness requirement forces applicants to describe their inventions in unambiguous terms so that other inventors will understand the scope of granted patent rights. Although the statutory provision for the definiteness requirement has been stable for many years, the Supreme Court’s decision in Nautilus v. Biosig Instruments altered the doctrine. The Court abrogated the Federal Circuit’s insoluble-ambiguity standard and replaced it with a new reasonable-certainty standard. Various district courts have applied the new standard in different ways ...


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