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All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes 2018 DePaul University College of Law

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.


Precedent And Disagreement, Glen Staszewski 2018 Michigan State University College of Law

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.


Why The Burger Court Mattered, David A. Strauss 2018 University of Chicago Law School

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.


Nothing New Under The Sun: The Law-Politics Dynamic In Supreme Court Decision Making, Stephen M. Feldman 2018 Pepperdine University

Nothing New Under The Sun: The Law-Politics Dynamic In Supreme Court Decision Making, Stephen M. Feldman

Pepperdine Law Review

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separate and independent in the process of judicial decision making. But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule ...


Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit 2018 Duke Law

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it ...


Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith 2018 Duke Law

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court ...


Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher 2018 Duke Law

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.


The Department That Cried Wolf: Tenth Circuit Vacates Preliminary Injunction In Absence Of Likely Injury In New Mexico Department Of Game & Fish V. United States Department Of The Interior, Curtis Cranston 2018 Boston College Law School

The Department That Cried Wolf: Tenth Circuit Vacates Preliminary Injunction In Absence Of Likely Injury In New Mexico Department Of Game & Fish V. United States Department Of The Interior, Curtis Cranston

Boston College Law Review

In the 2017 case, New Mexico Department of Game & Fish v. United States Department of the Interior, the United States Court of Appeals for the Tenth Circuit held that the New Mexico Department of Game and Fish (“New Mexico Department”) was not entitled to a preliminary injunction that barred the United States Fish and Wildlife Service from releasing endangered Mexican gray wolves into the wild on federal lands within New Mexico. The Tenth Circuit held that the New Mexico Department did not show that irreparable injury to its wildlife management efforts or its state sovereignty was likely. The Tenth Circuit ...


National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack 2018 Alexander Blewett III School of Law at the University of Montana

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land and Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision ...


Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris 2018 Duke Law

Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris

Duke Journal of Constitutional Law & Public Policy Sidebar

In Carpenter v. United States, the Supreme Court will decide whether the government’s acquisition of a suspect’s cell site location information (“CSLI”) during an ongoing criminal investigation is a “search” under the Fourth Amendment, and thus requires a showing of probable cause to obtain a warrant. This opinion will have future consequences for Americans and their privacy interests as cell sites continue to be built and CSLI records increasingly contain more private information about cell phone users. This commentary argues that that the necessity of owning and using cell phones renders past tests obsolete. With wavering, subjective expectations ...


Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel 2018 Concordia University School of Law, Boise

Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel

Katharine Van Tassel

In order to highlight the problems with the NPDB [National Practitioner Data Bank], this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing “predators” from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the “badge of infamy” that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process ...


United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko 2018 Concordia University School of Law

United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko

Greg Sergienko

Five years ago, in a contribution to these pages, I suggested that the Supreme Court's oldest precedents and the original intent of the framers of the Constitution precluded the use of evidence produced under a grant of immunity against the producer, even though the material produced included documents that the producer had not been compelled to write. This implied that information concealed with a cryptographic key could not be used in a criminal prosecution against someone from whom the key had been obtained under a grant of immunity. The issue, however, was doubtful given the tendency of the Court ...


Why The Religious Right Can't Have Its (Straight Wedding) Cake And Eat It Too: Breaking The Preservation-Through-Transformation Dynamic In Masterpiece Cakeshop V. Colorado Civil Rights Commission, Kyle C. Velte 2018 University of Minnesota Law School

Why The Religious Right Can't Have Its (Straight Wedding) Cake And Eat It Too: Breaking The Preservation-Through-Transformation Dynamic In Masterpiece Cakeshop V. Colorado Civil Rights Commission, Kyle C. Velte

Law & Inequality: A Journal of Theory and Practice

No abstract provided.


The Lottery Docket, Daniel Epps, William Ortman 2018 Washington University in St. Louis

The Lottery Docket, Daniel Epps, William Ortman

Michigan Law Review

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit ...


King's Domain, Mila Sohoni 2018 University of San Diego School of Law

King's Domain, Mila Sohoni

Notre Dame Law Review

In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous—but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule.

This Essay, prepared for a symposium held by the ...


The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias 2018 University of Michigan Law School

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more ...


Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky 2018 Roger Williams University School of Law

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.


Newsroom: A Mentor And A Friend 2-21-2018, Michael M. Bowden 2018 Roger Williams University School of Law

Newsroom: A Mentor And A Friend 2-21-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed 2018 Georgia State University College of Law

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence ...


Supreme Court Review: Legalistic Argle-Bargle, Molly McBurney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel 2018 University of Akron School of Law

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Katharine Van Tassel

No abstract provided.


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