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Full-Text Articles in Law
No Balancing For Anticonstitutional Government Conduct, Bruce Ledewitz
No Balancing For Anticonstitutional Government Conduct, Bruce Ledewitz
Law Faculty Publications
Noted Supreme Court critic Eric Segall has been criticizing the majority opinion in New York State Rifle & Pistol Ass'n v. Bruen for its failure to engage in any kind of means-end balancing in striking down a New York gun control measure--balancing that he argues the Court has engaged in since the Reconstruction era. Segall is hardly the only American law professor to level this charge. But the lack of balancing in Bruen is neither unprecedented nor methodologically innovative. It certainly does not reflect a victory of originalism. Instead, the Bruen decision stands firmly in the tradition that courts do …
Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias
Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias
Law Faculty Publications
Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …
Fixing The Federal Judicial Selection Process, Carl W. Tobias
Fixing The Federal Judicial Selection Process, Carl W. Tobias
Law Faculty Publications
Federal court selection is eviscerated. Across five years in Barack Obama’s presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Only when the Democratic majority ignited the “nuclear option,” a rare action that permitted cloture with fewer than sixty votes, did gridlock end. However, openings quickly grew after the Grand Old Party (GOP) captured an upper chamber majority, notwithstanding substantial pledges that it would supply “regular order” again. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, …
Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias
Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias
Law Faculty Publications
Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …
The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones
The Oath: The Obama White House And The Supreme Court By Jeffrey Toobin (Book Review), John Paul Jones
Law Faculty Publications
For anyone with an interest in the politics of courts, Jeffrey Toobin’s The Oath is a good read. Laypersons might see it as a busman’s holiday for lawyers working in American appellate courts, but NAACA members surely appreciate more than most how unique a judicial institution is the Supreme Court of the United States. Thus, there is much to which those working backstage in other venues can relate, but much more offering them frissons of the unusual.
Upside-Down Judicial Review, Corinna Barrett Lain
Upside-Down Judicial Review, Corinna Barrett Lain
Law Faculty Publications
The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes the opposite is true. Sometimes it is the elected branches that are out of sync with majority will and the Supreme Court that bridges the gap, turning the conventional understanding of the Court's role on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. What emerges is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and …
The Doctrinal Side Of Majority Will, Corinna Barrett Lain
The Doctrinal Side Of Majority Will, Corinna Barrett Lain
Law Faculty Publications
What is the Supreme Court's relationship with public opinion? Barry Friedman's answer in The Will of the People scours some 200 years of history to provide a distinctly political view of the Court, and the story he tells is compelling. Yet it is also incomplete. The Will of the People presents a largely external account of the law; it sees the influence of majority will as a force that moves outside the jurisprudence we lawyers spend so much of our time researching, writing, and talking about. By this account, there is what the Justices say is driving their decisionmaking-legal …
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal
Law Faculty Publications
In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person. After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …
The Breard Case And The Virtues Of Forbearance, John G. Douglass
The Breard Case And The Virtues Of Forbearance, John G. Douglass
Law Faculty Publications
At a time when the scheduled execution of Angel Francisco Breard made Virginia the focus of a groundbreaking controversy over the reach of internationallaw into the domestic criminal process of the United States, law students and faculty at the University of Richmond had the unique opportunity to consider the case along with Philippe Sands, then a Visiting Allen Chair Professor at the University.