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The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed E. Shugerman 2021 Fordham University School of Law

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed E. Shugerman

Faculty Scholarship

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania ...


Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck 2021 Georgetown University Law Center

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the ...


The End Of The War On Drugs, The Peace Dividend And The Renewed Fourth Amendment?, Michael Vitiello 2021 University of Oklahoma College of Law

The End Of The War On Drugs, The Peace Dividend And The Renewed Fourth Amendment?, Michael Vitiello

Oklahoma Law Review

No abstract provided.


Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett 2021 University of Oklahoma College of Law

Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett

Oklahoma Law Review

No abstract provided.


Stare Decisis Is For Pirates, Jesse D.H. Snyder 2021 University of Oklahoma College of Law

Stare Decisis Is For Pirates, Jesse D.H. Snyder

Oklahoma Law Review

No abstract provided.


Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker 2021 FIU College of Law

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.


The Hallmarks Of A Good Test: A Proposal For Applying The "Functional Equivalent" Rule From County Of Maui V. Hawaii Wildlife Fund, Damien M. Schiff, Glenn E. Roper 2020 Pacific Legal Foundation

The Hallmarks Of A Good Test: A Proposal For Applying The "Functional Equivalent" Rule From County Of Maui V. Hawaii Wildlife Fund, Damien M. Schiff, Glenn E. Roper

Pace Environmental Law Review

The Clean Water Act generally requires a federal permit for the discharge of pollutants “from any point source” to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed “directly” to regulated waters. But there is much disagreement over the extent to which indirect point-source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the “functional equivalent” of a direct point-source ...


The Jones Trespass Doctrine And The Need For A Reasonable Solution To Unreasonable Protection, Geoffrey Corn 2020 South Texas College of Law, Houston

The Jones Trespass Doctrine And The Need For A Reasonable Solution To Unreasonable Protection, Geoffrey Corn

Arkansas Law Review

Each day that Houston drivers exit from Interstate 45 to drive to downtown Houston, they pass an odd sight. Nestled within some bushes is an encampment of tents. This encampment is very clearly located on public property adjacent to the interstate highway, and equally clearly populated by homeless individuals. While local police ostensibly tolerate this presence, at least temporarily, the sight frequently evokes an image in my mind of a police search of those tents. This thought is especially prominent on the days I am driving to my law school, South Texas College of Law Houston, to teach my federal ...


Court-Packing Time? Supreme Court Legitimacy And Positivity Theory, Stephen M. Feldman 2020 University of Wyoming

Court-Packing Time? Supreme Court Legitimacy And Positivity Theory, Stephen M. Feldman

Buffalo Law Review

Many progressives have decided they need to change the Supreme Court to break the conservative justices’ lock on judicial power. Yet those same progressives disagree about the best way to change the Court. This Essay begins by comparing straight-forward court-packing—adding justices to shift the partisan balance on the Court—to other possible Court changes, such as court-curbing measures that would reduce the Court’s power. Court-packing has multiple advantages over these other possibilities, not the least of which is that even the current Roberts Court would almost certainly hold court-packing, unlike other potential changes, to be constitutional. Even so ...


Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden 2020 Roger Williams University School of Law

Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Constitutional Law's Conflicting Premises, Maxwell L. Stearns 2020 Venable, Baetjer & Howard Professor of Law, University of Maryland Francis King Carey School of Law. B.A. University of Pennsylvania, J.D. University of Virginia School of Law

Constitutional Law's Conflicting Premises, Maxwell L. Stearns

Notre Dame Law Review

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable.

These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the ...


Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman 2020 Pope F. Brock Associate Professor of Professional Responsibility, University of Georgia School of Law, and McDonald Distinguished Fellow at the Center for the Study of Law and Religion, Emory University

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman

Notre Dame Law Review

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid.

Yet the Court and scholars have largely ignored a practice that casts light on ...


Of What Consequence?: Sexual Offender Laws And Federal Habeas Relief, Katherine A. Mitchell 2020 University of Miami Law School

Of What Consequence?: Sexual Offender Laws And Federal Habeas Relief, Katherine A. Mitchell

University of Miami Law Review

New concerns for an old writ. The relatively recent advent of sex offender registries has led to consequences in the habeas corpus context—and they may be more than collateral. In particular, are the restraints imposed on registered sex offenders severe enough to constitute custody for habeas jurisdiction? With a recent split among the federal circuit courts, this Article attempts to decipher which side of the split the Supreme Court will—and should—fall.


Lamps Plus, Inc. V. Varela: Dark Times Ahead For Class Arbitrations, Joanna Niworowski 2020 University of Miami Law School

Lamps Plus, Inc. V. Varela: Dark Times Ahead For Class Arbitrations, Joanna Niworowski

University of Miami Law Review

The Federal Arbitration Act (“FAA”) was enacted in 1925 to combat judicial hostility towards arbitration. Over the years, the U.S. Supreme Court has interpreted this statute as evidencing a pro-arbitration policy and has upheld the use of arbitration clauses in a variety of contracts. Unfortunately, while the FAA was able to overcome the hostility towards arbitration, it was not able to stop the Court from finding a new target: class arbitrations.

This Comment analyzes the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela. In critiquing the Court’s continued erosion of the availability of class arbitrations ...


A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz 2020 University of Pennsylvania Carey Law School

A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

Faculty Scholarship at Penn Law

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply ...


One Ring To Rule Them All: Individual Judgments, Nationwide Injunctions, And Universal Handcuffs, Paul J. Larkin Jr., GianCarlo Canaparo 2020 John, Barbara & Victoria Rumpel Senior Legal Research Fellow at The Heritage Foundation; M.P.P., George Washington University, 2010; J.D., Stanford Law School, 1980; B.A., Washington & Lee University, 1977

One Ring To Rule Them All: Individual Judgments, Nationwide Injunctions, And Universal Handcuffs, Paul J. Larkin Jr., Giancarlo Canaparo

Notre Dame Law Review Reflection

A large and growing body of literature criticizes nationwide injunctions, although a handful of scholars have come to their qualified defense. The literature has focused on whether universal injunctions comport with the historic scope of federal courts’ equitable powers and are good policy to boot. Largely missing from the debate is a fulsome analysis of whether the Constitution or the Judicial Code authorizes federal courts to issue such injunctions and whether they are permissible under existing Supreme Court precedent. We argue that the answer to each question is “no.”

Parts I and II explain that no positive law authorizes universal ...


An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo 2020 Liberty University

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt ...


Law School News: Rwu Law Announces Rbg Contest For K-12 Students 12-2-2020, Michael M. Bowden 2020 Roger Williams University School of Law

Law School News: Rwu Law Announces Rbg Contest For K-12 Students 12-2-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Predictive Facts, Brent Ferguson 2020 University of Washington School of Law

Predictive Facts, Brent Ferguson

Washington Law Review

A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations.

Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact—facts not specific to a ...


Maximalist Decision Making: When Maximalism Is Appropriate For Appellate Courts, Lauren Cyphers 2020 West Virginia University College of Law

Maximalist Decision Making: When Maximalism Is Appropriate For Appellate Courts, Lauren Cyphers

West Virginia Law Review

No abstract provided.


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