Digital Commons Network^™

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What …

Coconspirator Statements And Former Testimony In New York And Federal Courts With Some Comments On Codification, Randolph N. Jonakait

Touro Law Review

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Scholarly Works

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins

Faculty Scholarship

Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …

Public Forum Doctrine And The Perils Of Categorical Thinking: Lessons From Lamb's Chapel, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In recent years, the intersection of the Religion and Speech Clauses of the First Amendment has become increasingly controversial particularly in the context of public schooling. Religious group meetings, the distribution of religious literature, the discussion of religious themes, and the recitation of prayers at graduation ceremonies have all forced the courts to weigh and re-weigh the right to individual speech against the responsibility of the state to stay within the bounds of Establishment Clause doctrine. Several legal and political factors have fueled this debate. Although the Supreme Court has reaffirmed on several occasions the unconstitutionality of organized prayer …

A Modest Proposal For A Political Court, Thomas W. Merrill

Faculty Scholarship

I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift, or whether I mean it to be taken seriously.

Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival

Faculty Scholarship

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits …

The Advocacy Of "Constitutional" Conduct, Marshall C. Derks

Indiana Law Journal

No abstract provided.

Ferc-Sec Overlapping Jurisdiction And The Ohio Power Litigation: A Loss For Ratepayers, Gary D. Levenson

Indiana Law Journal

No abstract provided.

Law-Making Responsibility And Statutory Interpretation, William D. Popkin

Indiana Law Journal

No abstract provided.

Medical Law And Ethics In The Post-Autonomy Age, Roger B. Dworkin

Indiana Law Journal

No abstract provided.

Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell

Indiana Law Journal

No abstract provided.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Takings Term Ii: New Tools For Attacking And Defending Environmental And Land-Use Regulation, Michael Allan Wolf

Law Faculty Publications

The 1991 October Term of the United States Supreme Court can legitimately be called "Takings Term II," a sequel to the Court's regulatory takings activism of the 1986 October Term. Unlike the previous trio of Keystone, First English, and Nollan, however, the Court's contributions in Lucas, Yee, and PFZ are as significant for what the Justices did not say as for what they contributed to the pages of the United States Reports. ...

The Impact Of The Cipollone Case On Federal Preemption Law, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court handed down an opinion in the Cipollone case on June 24, 1992. Justice Stevens, writing for the majority, concluded that the Federal Cigarette Labeling and Advertising Act preempted all tort claims against cigarette manufacturers based on failure to provide adequate warnings about the health risks of smoking. However, the Court also held that claims based on breach of express warranty, misrepresentation, and conspiracy were not preempted by the Act. Thus, although Cipollone represents a clear victory for tobacco companies, it also leaves the door open for future litigation. The first part of this Article will …

No-Challenge Termination Clauses: Incorporating Innovation Policy And Risk Allocation Into Patent Licensing Law, Christian Chadd Taylor

Indiana Law Journal

No abstract provided.

Conservatism And The Rehnquist Court, David F. Forte

Law Faculty Articles and Essays

Now that the Supreme Court has been overwhelmingly staffed by appointees of Republican Presidents, we can ask: To what extent have they been faithful to the original version of the Constitution as articulated during its early years? How have they revivified the structural protections? How have they communicated an ethical sense of their own role in the structure? The answer, unfortunately, is that the record remains disappointing.

The Supreme Court's Narrow View On Civil Rights, Jack M. Beermann

Faculty Scholarship

The right to choose abortion, although recently significantly curtailed from its original scope,' is a federally protected liberty interest of women, and is at least protected against the imposition of "undue burdens" by state and local government.² Some of the most serious threats to women's ability to choose abortion have come not from government regulation, but from private, national, organized efforts to prevent abortions. In addition to seeking change through the political system, some of these organizations, most notably Operation Rescue, have focused on the providers of abortion, and have attempted to prevent abortions by forcibly closing abortion clinics …

The Recent Respectability Of Summary Judgments And Directed Verdicts In Intentional Age Discrimination Cases: Adea Case Analysis Through The Supreme Court's Summary Judgment Prism, Frank J. Cavaliere

Cleveland State Law Review

The purpose of this Article is to review recent Supreme Court "guidance" on standards for summary judgment and directed verdict and the effect these decisions are having upon ADEA cases.

Re-Righting The Right To Privacy: The Supreme Court And The Constitutional Right To Privacy In Criminal Law, Jana Nestlerode

Cleveland State Law Review

Since the 1970's, federal legislation has expanded privacy rights in nonconstitutional areas. Juxtaposed against this more liberal legislative trend is the action of a significantly more conservative judiciary which has, and is, contracting that right in those areas governed by the Constitution. An examination of the Supreme Court's most recent decisions in the criminal law arena readily bears witness to this proclivity.

Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost …

Civil Service Appointments And Promotions

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Due Process

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.