Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, 2021 Touro Law Center
Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron
Scholarly Works
No abstract provided.
Ruth Bader Ginsburg, Wise Legal Giant, 2021 Touro Law Center
Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, 2021 Columbia Law School
Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh
Faculty Scholarship
In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copyright adjudication that is at odds with the dominant approach under the Copyright …
The Hallmarks Of A Good Test: A Proposal For Applying The "Functional Equivalent" Rule From County Of Maui V. Hawaii Wildlife Fund, 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, 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, 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, some progressives view …
Law School News: 'Unmatched Opportunities' 12-16-2020, 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, 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 selected …
Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, 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 …
Lamps Plus, Inc. V. Varela: Dark Times Ahead For Class Arbitrations, 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, this Comment considers …
Of What Consequence?: Sexual Offender Laws And Federal Habeas Relief, 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.
One Ring To Rule Them All: Individual Judgments, Nationwide Injunctions, And Universal Handcuffs, 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, 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, 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.
Eager To Follow: Methodological Precedent In Statutory Interpretation, 2020 William & Mary Law School
Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.
This …
Predictive Facts, 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 certain …
Maximalist Decision Making: When Maximalism Is Appropriate For Appellate Courts, 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.
No Longer Innocent Until Proven Guilty: How Ohio Violates The Fourth Amendment Through Familial Dna Searches Of Felony Arrestees, 2020 Cleveland-Marshall College of Law
No Longer Innocent Until Proven Guilty: How Ohio Violates The Fourth Amendment Through Familial Dna Searches Of Felony Arrestees, Jordan Mason
Cleveland State Law Review
In 2013, the United States Supreme Court legalized DNA collection of all felony arrestees upon arrest through its decision in Maryland v. King. Since then, the State of Ohio has broadened the use of arrestee DNA by subjecting it to familial DNA searches. Ohio’s practice of conducting familial DNA searches of arrestee DNA violates the Fourth Amendment because arrestees have a reasonable expectation of privacy in the information that is extracted from a familial DNA search and it fails both the totality of the circumstances and the special needs tests. Further, these tests go against the intention of the …
The Little Statute That Gets No Respect: How Courts Have Ignored The Administrative Procedure Act With Respect To Whether Pre-Enforcement Challenge Provisions Are Exclusive, 2020 Brigham Young University Law School
The Little Statute That Gets No Respect: How Courts Have Ignored The Administrative Procedure Act With Respect To Whether Pre-Enforcement Challenge Provisions Are Exclusive, Arthur Sapper
Brigham Young University Journal of Public Law
No abstract provided.
Distinguishing Permissible Preemption From Unconstitutional Commandeering, 2020 In residence, academic year 2019–20, New York University School of Law; Richard J. Hughes Professor of Constitutional and Public Law and Public Service, Seton Hall University School of Law
Distinguishing Permissible Preemption From Unconstitutional Commandeering, Edward A. Hartnett
Notre Dame Law Review
For years, the preemption doctrine and the anticommandeering doctrine lived in an uneasy tension, with each threatening to consume the other. On the one hand, preemption permits Congress to insist that state law give way to congressional demands. On the other hand, the anticommandeering doctrine prohibits Congress from commandeering state legislatures or state executives. Without some way to establish a boundary between the two, preemption could swallow the anticommandeering doctrine by allowing Congress to control state law. Alternatively, absent some boundary, anticommandeering could swallow preemption by empowering states to refuse to be governed by the commands of federal law. Either …