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Articles 1 - 9 of 9
Full-Text Articles in Law
Procuring ‘Justice’?: Citizens United, Caperton, And Partisan Judicial Elections, André Douglas Pond Cummings
Procuring ‘Justice’?: Citizens United, Caperton, And Partisan Judicial Elections, André Douglas Pond Cummings
Faculty Scholarship
In recent years, two inextricably connected issues have received a great deal of attention in both United States political discourse and in the legal academic literature. One issue of intense legal debate and frustration has been that of judicial recusal, including an examination of the appropriate standards that should necessarily apply to judges that seem conflicted or biased in their role as neutral arbiter. A second issue that has spawned heated commentary and great dispute over the past decade is that of campaign finance law, including examination of the role that powerful and wealthy benefactors play in American electioneering. Both …
Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron
Plaintiff Neutrality Principle: Pleading Complex Litigation In The Era Of Twombly And Iqbal, Robin Effron
Faculty Scholarship
No abstract provided.
What Is "(Im)Partial Enough" In A World Of Embedded Neutrals?, Nancy A. Welsh
What Is "(Im)Partial Enough" In A World Of Embedded Neutrals?, Nancy A. Welsh
Faculty Scholarship
The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. highlighted the fragility of judicial independence and impartiality in the United States. A similar, less-noticed fragility of independence and impartiality exists among the arbitrators, mediators and administrative hearing officers who resolve an increasing number of disputes. Everywhere one looks, there is unremarked yet remarkable evidence of the rise of - embedded neutrals, particularly in uneven contexts between one-time and repeat players. This phenomenon becomes particularly worrisome when the embedded neutral’s role is due to their special relationship with the repeat player, and the one-time player is not as …
Taking Responsibilities As Well As Rights Seriously, James E. Fleming
Taking Responsibilities As Well As Rights Seriously, James E. Fleming
Faculty Scholarship
In his first book, Ronald Dworkin famously called for “taking rights seriously” by treating them as “trumps” over considerations of utility or the general welfare.1 Taking Rights Seriously (along with other works) provoked calls for taking responsibilities as well as (or instead of) rights seriously, or for engaging in “responsibility talk,” not just “rights talk.”2 In Life’s Dominion, Dworkin himself got on the responsibility bandwagon in justifying the right to procreative autonomy and the right to die.3 He countenanced that government may encourage women to take the decision whether to have an abortion responsibly, so long as it does not …
In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman
In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman
Faculty Scholarship
In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …
The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper
The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper
Faculty Scholarship
This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, …
The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson
The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson
Faculty Scholarship
On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a …
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore
Faculty Scholarship
In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court's two most prominent approaches for gauging presidential power-Justice Jackson's tripartite framework and the historical gloss on executive power-congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court's reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …
Justice Stevens' Temperance, Jamal Greene
Justice Stevens' Temperance, Jamal Greene
Faculty Scholarship
On the last opinion day of the last of his 35 Terms on the Supreme Court, Justice John Paul Stevens issued his valedictory opinion, a 57-page dissent in McDonald v. City of Chicago. Justice Stevens laid out an expansive vision of constitutional interpretation that Justice Alito aptly called "eloquent" in his plurality opinion. Not one for sentimental farewells, Justice Scalia was less generous: "Justice Stevens' approach," he wrote in the last line of his concurring opinion," puts democracy in peril."