Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Keyword
-
- United States Supreme Court (35)
- Admissibility (4)
- Confessions (4)
- Congress (4)
- Federalism (4)
-
- Assisted suicide (3)
- Constitutional Law (3)
- Custodial interrogations (3)
- History (3)
- Judicial review (3)
- Miranda v. Arizona (3)
- Physician-assisted suicide (3)
- Public policy (3)
- Supreme Court (3)
- Totality of circumstances (3)
- Arbitral awards (2)
- Arbitrators (2)
- Civil Rights (2)
- Contract interpretation (2)
- Decision making (2)
- Due process (2)
- Employers (2)
- Employment contracts (2)
- Equal protection (2)
- Evidence (2)
- Judges (2)
- Judicial Review (2)
- Jurisprudence (2)
- Labor arbitration (2)
- Law reform (2)
- Publication
-
- Articles (13)
- Supreme Court Preview (10)
- Faculty Publications (5)
- All Faculty Scholarship (4)
- Book Chapters (3)
-
- Other Publications (3)
- Publications (3)
- Reviews (2)
- Vanderbilt Law School Faculty Publications (2)
- Articles & Chapters (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Faculty Articles (1)
- Faculty Scholarship (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Law Faculty Publications (1)
- Law Faculty Research Publications (1)
- UIC Law Open Access Faculty Scholarship (1)
Articles 31 - 53 of 53
Full-Text Articles in Law
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard
Articles
This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Articles
In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Articles
The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Articles
The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …
Beyond The Supreme Court: A Modest Plea To Improve Our Asylum System, Andrew I. Schoenholtz
Beyond The Supreme Court: A Modest Plea To Improve Our Asylum System, Andrew I. Schoenholtz
Georgetown Law Faculty Publications and Other Works
Moderating a session at the Workshop on the Supreme Court and Immigration and Refugee Law at the Georgetown University Law Center, Peter Spiro asked just how important the Supreme Court really is to refugee and immigration law. Unfortunately, the Supreme Court has actively interpreted the Refugee Convention and Protocol, and its decisions have had an adverse affect on important protection issues. James Hathaway knows this well. Yet his article focuses on the two Supreme Court decisions that most practitioners and scholars agree have not translated into serious protection problems in the United States or abroad.
Political Questions, Judicial Questions, And The Problem Of Washington V. Glucksberg, Carl E. Schneider
Political Questions, Judicial Questions, And The Problem Of Washington V. Glucksberg, Carl E. Schneider
Other Publications
Over a century and a half ago, Alexis de Tocqueville famously said, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Physician-assisted suicide superbly illustrates Tocqueville's acute observation. For a number of years, assisted suicide was the prototype of a (nonpartisan) political question. Interest groups brought it to public attention. Public discussion of it flourished. Legislatures debated it. Citizens in several states decided in referenda whether to make it legal. Almost suddenly, however, this classic political process was transformed into a judicial one by the startling and strongly stated …
California Dental Association: Not The Quick Look But Not The Full Monty, Stephen Calkins
California Dental Association: Not The Quick Look But Not The Full Monty, Stephen Calkins
Law Faculty Research Publications
No abstract provided.
Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman
Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman
Articles
In this article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council (NRC) have been badly mistaken in their analysis of this problem. The mistakes are significant because the reports have carried great authority with American courts; moreover, the DNA Advisory Board of the FBI has endorsed the second …
Strategic Voting On Multimember Courts, Evan H. Caminker
Strategic Voting On Multimember Courts, Evan H. Caminker
Articles
In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment. In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
Articles
Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim Rossi
Vanderbilt Law School Faculty Publications
Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …
All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry
All Or Nothing: Explaining The Size Of Supreme Court Majorities, Paul H. Edelman, Suzanna Sherry
Vanderbilt Law School Faculty Publications
In this Article, Professors Edelman and Sherry use a probabilistic model to explore the process of coalition formation on the United States Supreme Court. They identify coalition formation as a Markov process with absorbing states and examine voting patterns from twelve Court Terms. On the basis of their data, they conclude that Justices are reluctant to remain in small minorities. Surprisingly, however, they also find that a three-Justice minority coalition is less likely to suffer defections than a four-Justice minority coalition. This counterintuitive result suggests that while in general it is minority Justices rather than majority Justices who drive the …
The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer
The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer
All Faculty Scholarship
In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel
Publications
No abstract provided.
The Real Separation In Separation Of Powers Law, Elizabeth Magill
The Real Separation In Separation Of Powers Law, Elizabeth Magill
All Faculty Scholarship
This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.
Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …
The Futures Problem, Geoffrey C. Hazard Jr.
The Futures Problem, Geoffrey C. Hazard Jr.
All Faculty Scholarship
Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …
The United States Supreme Court And Indigenous Peoples: Still A Long Way To Go Toward A Therapeutic Role, S. James Anaya
The United States Supreme Court And Indigenous Peoples: Still A Long Way To Go Toward A Therapeutic Role, S. James Anaya
Publications
No abstract provided.
Still Unfair, Still Arbitrary - But Do We Care?, Samuel R. Gross
Still Unfair, Still Arbitrary - But Do We Care?, Samuel R. Gross
Other Publications
Welcome. It is a pleasure to see everybody at this bright and cheery hour of the morning. My assignment is to try to give an overview of the status of the death penalty in America at the beginning of the twenty-first century. I will try to put that in the context of how the death penalty was viewed thirty years ago, or more, and maybe that will tell us something about how the death penalty will be viewed thirty or forty years from now.
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Faculty Publications
No abstract provided.
For The Misdemeanor Outlaw: The Impact Of The Ada On The Institutionalization Of Criminal Defendants With Mental Disabilities, Michael L. Perlin
For The Misdemeanor Outlaw: The Impact Of The Ada On The Institutionalization Of Criminal Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This article argues that the Supreme Court's decision in Olmstead v. L.C., 119 S. Ct. 2176 (1999), finding a qualified right to community treatment and services for certain institutionalized persons under the Americans with Disabilities Act (ADA), causes us to reconceptualize state policies that mandate that all defendants in four categories - those being evaluated for competency to stand trial, those found permanently incompetent to stand trial under the Supreme Court's decision in Jackson v. Indiana, 406 U.S. 715 (1972), those being evaluated for insanity, and those found not guilty by reason of insanity - be treated and housed in …
How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins
How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins
Faculty Publications
No abstract provided.
Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i
Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i
Articles in Law Reviews & Other Academic Journals
The continuing debate over the use of amicus curiae briefs at the World Trade Organization (“WTO”) raises interesting questions about the influence of the U.S. legal system on the WTO dispute settlement process. Specifically, it brings to the surface differences between legal cultures and the fact that the U.S. legal culture with its emphasis on procedure is not readily transferable to the WTO. Comparing the controversy regarding the use of amicus curiae briefs before WTO Panels and the Appellate Body with the history and evolution of the institution of amicus curiae before the U.S. Supreme Court may help explain the …