Law Commons^™

The Interpretive Dimension Of Seminole Rock, Kevin M. Stack

Vanderbilt Law School Faculty Publications

A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency's interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court's choice of method for interpreting regulations” including how it determines which agency interpretations are inconsistent with the regulation ” may be just as important, if not more …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.

Harris V. Quinn: What We Talk About When We Talk About Right-To-Work Laws, Michael J. Yelnosky

Law Faculty Scholarship

No abstract provided.

Causation And Harm In A Multicomponent World, Bernard Chao

Sturm College of Law: Faculty Scholarship

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm …

P-Values, Priors, And Procedure In Antidiscrimination Law, Jason R. Bent

Buffalo Law Review

No abstract provided.

The Law's Clock, Frederic Bloom

Publications

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

5th Circuit Likely To Strike Down Gay Marriage Bans: An Analysis Of The Hearing, Ari Ezra Waldman

Other Publications

No abstract provided.

No Execution If Four Justices Object, Eric M. Freedman

Hofstra Law Faculty Scholarship

I. DRIVING A NAIL WITH A SCREWDRIVER IN CAPITAL CASES

Today’s Supreme Court defines its role as choosing from the thousands of cases pressed upon it annually those very few that will best serve as vehicles for the resolution of legal issues of general importance.

1. A. Ordinary Cases

(1) The necessary consequence is that some litigants will seek review and fail to attain it for reasons having nothing to do with the merits of their claims (e.g., the Court desires to have the issue percolate for a while in the lower courts or in the public arena), and will find …

Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen

Articles & Chapters

The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

Caperton's Next Generation: Beyond The Bank, Jed H. Shugerman, Debrah L. Basset, Gregory S. Parks, Dmitry Bam, Rex R. Perschbacher

Faculty Scholarship

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court's decision in 'Caperton v. A.T. Massey Coal Co.' discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University.

Implementing Marriage Equality In America, Carl W. Tobias

Law Faculty Publications

In June, the Supreme Court held that state proscriptions on same-sex marriage violate the Fourteenth Amendment. Obergefell v. Hodges declared that same-sex couples possess a fundamental right to marry but left implementation’s daily particulars to federal, state, and local officials. Because formal recognition of marriage equality is a valuable first step but realizing actual marriage equality will necessitate careful implementation of the Justices’ mandate, this effectuation deserves analysis.

Part I principally reviews Obergefell’s rationale for formal marriage equality. Part II assesses implementation of the Court’s mandate. Detecting that a few states and numerous localities have yet to provide comprehensive marriage …

The End Of Class Actions?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court's decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to …

Immigration Policy And The Rhetoric Of Reform: “Deport Felons, Not Families,” Moncrieffe V. Holder, Children At The Border, And Idle Promises, Terri R. Day, Leticia M. Diaz

Faculty Scholarship

No abstract provided.

A Case For The Electoral College And For Its Faithless Elector, Stephen M. Sheppard

Faculty Articles

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a "minority president" happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—through that election was by …

No Execution If Four Justices Object, Eric M. Freedman

Hofstra Law Review

Under longstanding Supreme Court practice, a certiorari petition is granted if four Justices vote to do so. But such success may be of little value if the petitioner is a capital prisoner whose litigation adversary, the government, has chosen to set an execution date. Five votes are needed to stay an execution. In capital cases under warrant, then, a prisoner may be executed notwithstanding the decision of the Court to review his or her case.

This sometimes-fatal anomaly has for more than 30 years been the subject of frictions among the Justices, critical commentary by the profession, and visible and …

Firearm Regionalism And Public Carry: Placing Southern Antebellum Case Law In Context, Eric Ruben, Saul A. Cornell

Faculty Journal Articles and Book Chapters

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional …

Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt

Faculty Scholarship

At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

Addressing Three Problems In Commentary On Catholics At The Supreme Court By Reference To Three Decades Of Catholic Bishops' Amicus Briefs, Kevin C. Walsh

Law Faculty Publications

Much commentary about Catholic Justices serving on the Supreme Court suffers from three related shortcomings: (1) episodic, one-case-at-a-time commentary; (2) asymmetric causal attributions resulting from inattention to cases in which Catholic Justices vote for outcomes opposite those advocated by the Catholic Bishops' Conference; and (3) inattention to broader jurisprudential and ideological factors. This article uses an overlooked resource to identify and counteract these shortcomings. It assesses the votes of the Justices-Catholic and non-Catholic alike-in the full set of cases from the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed …

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff

Law Faculty Articles and Essays

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: "If you're right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?" As it turns out, that question was crucial to Roberts's thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question's import (myself included). The result of Roberts's actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …

Will Uncooperative Federalism Survive Nfib?, Abigail R. Moncrieff, Jonathan Dinerstein

Law Faculty Articles and Essays

In the end, the Supreme Court's federalism jurisprudence seems to run contrary to its stated goals. The New Federalism era, up to and including NFIB, creates an incentive for the national government to flex its own muscles more, not less. Maybe that result will be good for voters' clarity and for uniformity of national policy, but it is not good for uncooperative federalism or for states' autonomy—the values that the Supreme Court seems to be trying to protect.

Interruptions In Search Of A Purpose: Oral Argument In The Supreme Court, October Terms 1958–60 And 2010–12, Barry Sullivan, Megan Canty

Utah Law Review

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for …

On Brown V. Board Of Education And Discretionary Originalism, Ronald Turner

Utah Law Review

In 1954, the United States Supreme Court issued its seminal decision in Brown v. Board of Education. Interpreting and applying the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a unanimous Court held “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” In so holding, the Court determined that it could “not turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” The Court chose, instead, to “consider public education in the …