Law Commons^™

Strategic Behavior And Variation In The Supreme Court’S Caseload Over Time, Kenneth W. Moffett, Forrest Maltzman, Karen Miranda, Charles R. Shipan

SIUE Faculty Research, Scholarship, and Creative Activity

Over the past sixty years, the size of the Supreme Court’s docket has varied tremendously, growing at some points in time and shrinking at others. What accounts for this variation in the size of the docket? We focus on two key strategic factors – the predictability of outcomes within the Court, and whether justices consider the potential actions of other political institutions – and assess whether these factors help to explain the variation in docket size over time. We discover that uncertainty and institutional constraints prevent the Court from choosing cases with complete freedom, even after accounting for other potential …

Newsroom: Logan On Judicial Diversity, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Does The Public Care How The Supreme Court Reasons? Empirical Evidence From A National Experiment And Normative Concerns In The Case Of Same-Sex Marriage, Courtney Megan Cahill, Geoffrey Christopher Rapp

Scholarly Publications

Can the Supreme Court influence the public’s reception of decisions vindicating rights in high-salience contexts, like samesex marriage, by reasoning in one way over another? Will the people’s disagreement with those decisions—and, by extension, societal backlash against them—be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate with the people as a descriptive matter, should the Court minimize anxiety-producing characteristics in decisions vindicating civil rights—such as homosexuality in the marriage-equality context—simply in order to assuage the people?

This Article combines constitutional theory and empirical legal analysis to ask …

United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young

Faculty Scholarship

The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

Articles

This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of …

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

Articles

No abstract provided.

Iftikhar Chaudhry’S Options: Can The Courts Remake Pakistani Democracy?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

Will The Real Elena Kagan Please Stand Up? Conflicting Public Images In The Supreme Court Confirmation Process, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

What images of judging did the Kagan confirmation process project?

My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decisionmaking, with a portrait of judging as a …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

Markets For Markets: Origins And Subjects Of Information Markets, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

(Excerpt)

After the death of Pope John Paul II, a papal conclave convened to elect his successor. The media speculated that certain candidates were the "frontrunners" to watch. At the same time, pools formed on web sites to predict the outcome of the conclave, either for fun (using virtual money) or for profit. Throughout the days that the conclave met in April of 2005, trading continued, and ultimately the various markets predicted both that Cardinal Joseph Ratzinger would emerge as the next pope and that he would choose the name Benedict XVI. After the white smoke signifying a new pope …

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

The Fourth Amendment And Terrorism, John Burkoff

Articles

The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that …

Who Has The Body? The Paths To Habeas Corpus Reform, Cary H. Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of this article is to place the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 within a political and historical framework that describes the effort by the Supreme Court and various interested parties to restrict prisoners’ access to the federal courts by way of habeas corpus. Of principal concern here is how an act of terrorism against the United States provides an opportunity for Congress to restrict death row prisoners from obtaining habeas corpus review. Along with an analysis of Supreme Court decisions, three attempts to limit federal habeas corpus review for state prisoners from the late …

'A Flame Of Fire': The Fourth Amendment In Perilous Times, John Burkoff

Articles

The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our …

Foreword: Addressing The Real World Of Racial Injustice In The Criminal Justice System, Donna Coker

Articles

No abstract provided.

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

City Of Tigard And Takings Law, Richard D. Lazarus

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

10 pages.

Contains 1 page of references.

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski

Faculty Scholarship

Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …

The Felony-Murder Rule: A Doctrine At Constitutional Crossroads, Nelson E. Roth, Scott E. Sundby

Articles

No abstract provided.

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

Faculty Scholarship

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

Abortion—Whose Decision?, Geoffrey J. Bennett, Christina M. Lyon

Journal Articles

Major Points

• The decision in Paton v. Trustees of B.P.A.S.
• Does a husband's "veto power" exist in English Law?
• The rights of the Foetus in English Law
• The rights of the "illegitimate father"
• The American position
• Some reflections