Law Commons^™

The Other Janus And The Future Of Labor’S Capital, David H. Webber

Faculty Scholarship

Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

Elite Patent Law, Paul Gugliuzza

Faculty Scholarship

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found …

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly …

Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs

Faculty Scholarship

Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle …

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …