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Articles 1 - 6 of 6
Full-Text Articles in Law
Under-The-Table Overruling, Christopher J. Peters
Under-The-Table Overruling, Christopher J. Peters
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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …
Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp
Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp
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Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed …
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
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Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …
Frozen In Time: The State Action Doctrine's Application To Amateur Sports, Dionne L. Koller
Frozen In Time: The State Action Doctrine's Application To Amateur Sports, Dionne L. Koller
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The state action doctrine has as its central goal the preservation of liberty by limiting the intrusion of the government into the "private" sphere. It achieves this by applying the Constitution only to government, and not private, action. Traditionally, amateur sports regulators such as the National Collegiate Athletic Association (NCAA) and the United States Olympic Committee (USOC) have been viewed by courts as private. As a result, this article explains that courts generally give great deference to amateur sports organizations such as the NCAA and USOC to regulate sports with little judicial interference, including in the area of constitutional litigation. …
Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein
Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein
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In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting …
The Possibility Of A Secular First Amendment, Chad Flanders
The Possibility Of A Secular First Amendment, Chad Flanders
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In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …