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The Right Family, Noa Ben-Asher, Margot J. Pollans 2020 Elisabeth Haub School of Law at Pace University

The Right Family, Noa Ben-Asher, Margot J. Pollans

Pace Law Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not ...


42nd Annual Foulston-Siefkin Lecture: The Next Wave Of Fourth Amendment Challenges After Carpenter, Matthew Tokson 2020 S.J. Quinney College of Law, University of Utah

42nd Annual Foulston-Siefkin Lecture: The Next Wave Of Fourth Amendment Challenges After Carpenter, Matthew Tokson

Utah Law Faculty Scholarship

This is an edited and adapted version of the 42nd Annual Foulston Siefkin Lecture, delivered at Washburn University School of Law.

The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring ...


Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone 2020 St. Mary's University School of Law

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change ...


The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn 2020 University of Oregon School of Law

The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn

Utah Law Review

Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.

However, as important as the concept of judicial impartiality may be, it is worth ...


The Major Questions Doctrine: How The Supreme Court’S Efforts To Rein In The Effects Of Chevron Have Failed To Meet Expectations, Andrew Howayeck 2020 Candidate for J.D., Roger Williams University School of Law, 2020

The Major Questions Doctrine: How The Supreme Court’S Efforts To Rein In The Effects Of Chevron Have Failed To Meet Expectations, Andrew Howayeck

Roger Williams University Law Review

No abstract provided.


Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba 2020 Touro Law Center

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.


The Law Of Obscenity In Comic Books, Rachel Silverstein 2020 Touro Law Center

The Law Of Obscenity In Comic Books, Rachel Silverstein

Touro Law Review

No abstract provided.


Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux 2020 University of Colorado Law School

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Articles

No abstract provided.


The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs 2020 Northwestern Pritzker School of Law

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.


Speech Inequality After Janus V. Afscme, Charlotte Garden 2020 Seattle University School of Law

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Scholarship

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision ...


Avoidance Creep, Charlotte Garden 2020 Seattle University School of Law

Avoidance Creep, Charlotte Garden

Faculty Scholarship

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any ...


A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips 2020 Northwestern Pritzker School of Law

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.


Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?, 2020 Northwestern Pritzker School of Law

Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?

Northwestern Journal of Law & Social Policy

No abstract provided.


The Traditions Of American Constitutional Law, Marc O. DeGirolami 2020 St. John's University School of Law

The Traditions Of American Constitutional Law, Marc O. Degirolami

Faculty Publications

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study ...


Backdoor Purposivism, Anita S. Krishnakumar 2020 St. John's University School of Law

Backdoor Purposivism, Anita S. Krishnakumar

Faculty Publications

It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is ...


United States Supreme Court Survey: 2018 Term, Niki Kuckes 2020 Professor of Law, Roger Williams University School of Law

United States Supreme Court Survey: 2018 Term, Niki Kuckes

Roger Williams University Law Review

No abstract provided.


Legal Interpretation, Mykaila Ashlynn Berry 2020 University of Montana

Legal Interpretation, Mykaila Ashlynn Berry

Undergraduate Theses, Professional Papers, and Capstone Artifacts

The purpose of this project is to provide a fresh and in-depth analysis of legal jurisprudence through the use of two of the most important legal theorists of our time, H. L. A. Hart and Ronald Dworkin. This project focuses on how Dworkin’s position in his famous paper “Hard Cases”, helps us understand an important Supreme Court case, Cohen v. California. Cohen will be the main focus of my project. The project will discuss the case and the possible ways of deciding the case. Then the project explains both Dworkin’s and Hart’s positions. Finally, the project will ...


Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran 2020 University of Virginia

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or ...


The Roberts Court And Administrative Law, Gillian E. Metzger 2020 Columbia Law School

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed.

The 2018 Term cases demonstrate that ...


Rico Extraterritoriality, Rjr Nabisco And Shareholder Residence – A Key Consideration In Determining Rico Domestic Injury, Laurence A. Steckman, Esq., Adam J. Rader, Esq. 2020 Touro College Jacob D. Fuchsberg Law Center

Rico Extraterritoriality, Rjr Nabisco And Shareholder Residence – A Key Consideration In Determining Rico Domestic Injury, Laurence A. Steckman, Esq., Adam J. Rader, Esq.

Touro Law Review

No abstract provided.


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