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Articles 31 - 60 of 68
Full-Text Articles in Law
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear
Faculty Scholarship
Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …
Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein
Faculty Scholarship
This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Faculty Scholarship
Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …
Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney
Foreseeing Greatness - Measurable Performance Criteria And The Selection Of Supreme Court Justices Symposium: Empirical Measures Of Judicial Performance, James J. Brudney
Faculty Scholarship
This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two …
The Law Of Typicality: Examining The Procedural Due Process Implications Of Sandin V. Conner, Donna H. Lee
The Law Of Typicality: Examining The Procedural Due Process Implications Of Sandin V. Conner, Donna H. Lee
Fordham Law Review
Although the Due Process Clause of the Fourteenth Amendment has long protected against deprivations that implicate state-created liberty interests as well as core constitutional concerns, the Supreme Court changed course in liberty interest jurisprudence in Sandin v. Conner. It retreated from a positivist approach and articulated a new test for determining when a prisoner's claim warrants procedural due process. The Court held that the challenged action must impose an "atypical and significant" hardship, but provided little guidance on how to measure typicality and significance. This Article proposes a methodology for examining typicality that is grounded in empirical evidence and advocates …
What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard
What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard
Fordham Urban Law Journal
This article explores the ways in which the court's recognition of a broad zone of personal liberty in Lawrence v. Texas may serve to strengthen a woman's constitutionally protected reproductive rights in future Supreme Court decisions. Part of the author's analysis focuses on using particular Justices' opinions (and dissents) to predict the direction of future challenges to abortion rights in front of the Supreme Court.
Zelman V. Simmons-Harris: Is The Supreme Court's Latest Word On School Voucher Programs Really The Last Word?, Sara J. Crisafulli
Zelman V. Simmons-Harris: Is The Supreme Court's Latest Word On School Voucher Programs Really The Last Word?, Sara J. Crisafulli
Fordham Law Review
No abstract provided.
Something Wicked This Way Comes: Constitutional Transformation And The Growing Power Of The Supreme Court, Matthew B. Stein
Something Wicked This Way Comes: Constitutional Transformation And The Growing Power Of The Supreme Court, Matthew B. Stein
Fordham Law Review
No abstract provided.
The Education Justice: The Honorable Lewis Franklin Powell, Jr., Victoria J. Dodd
The Education Justice: The Honorable Lewis Franklin Powell, Jr., Victoria J. Dodd
Fordham Urban Law Journal
The Honorable Lewis Franklin Powell, Jr. is “the education Justice” of the United States. During his tenure on the U.S. Supreme Court, from 1971 to 1987, Justice Powell authored at least twenty major opinions in education law, in addition to numerous significant concurrences and dissents. Just a sampling of Justice Powell's majority opinions on education could form the bulk of an education law textbook recognizable by any American law student. This Article will explore some of Justice Powell's major Supreme Court rulings in education law. It will also consider how these rulings may have related to aspects of Justice Powell's …
The Changing Complexion Of Workplace Law: Labor And Employment Decisions Of The Supreme Court's 1999-2000 Term , James J. Brudney
The Changing Complexion Of Workplace Law: Labor And Employment Decisions Of The Supreme Court's 1999-2000 Term , James J. Brudney
Faculty Scholarship
At the dawn of a new century of Supreme Court workplace law, it seems especially appropriate to offer some perspective on the recent and relatively recent past. Before addressing the seven cases involving labor and employment issues decided by the Supreme Court in the Term just ended, I want briefly to describe (in what I hope are not mechanical terms) how the Court's interests in labor and employment law have evolved from the start of the Burger Era in 1969 to the current, mature stage of the Rehnquist Court.
Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein
Faculty Scholarship
Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Faculty Scholarship
The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …
How Conservative Is The Rehnquist Court--Three Issues, One Answer, Staci Rosche
How Conservative Is The Rehnquist Court--Three Issues, One Answer, Staci Rosche
Fordham Law Review
No abstract provided.
Rethinking The Supreme Court's Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Rethinking The Supreme Court's Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Fordham Urban Law Journal
Part I of this Article discusses Supreme Court cases prior to 1981, in which the Court first expressed its hands-off approach to deciding questions of religious practice and belief. This Part suggests that in these decisions, as a result of a proper concern for religious autonomy, the Court already began the process of expanding the principle of judicial non-interference, at the cost of sacrificing effective adjudication of important constitutional issues. Part II of this Article critiques the Court's approach in Free Exercise Clause cases, identifying different problems that have arisen as a result of the Court's approach. This Part argues …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …
Assisted Suicide, The Due Process Clause And "Fidelity In Translation", Willard C. Shih
Assisted Suicide, The Due Process Clause And "Fidelity In Translation", Willard C. Shih
Fordham Law Review
No abstract provided.
By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins
By Reason Of Their Sex: Feminist Theory Postmodernism And Justice , Tracy E. Higgins
Faculty Scholarship
Both the Supreme Court's jurisprudence of gender and feminist legal theory have generally assumed that some identifiable and describable category of woman exists prior to the construction of legal categories. For the Court, this woman-whose characteristics admittedly have changed over time-serves as the standard against which gendered legal classifications are measured. For feminism, her existence has served a different but equally important purpose as the subject for whom political goals are pursued. To the extent that the definitions of the category diverge, the differences among definitions are played out in feminist critiques of the Court's gender jurisprudence, and, occasionally, in …
Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski
Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski
Faculty Scholarship
Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …
Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green
Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green
Faculty Scholarship
In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to …
The Supreme Court And Freedom Of Expression From 1791 To 1917, Michael T. Gibson
The Supreme Court And Freedom Of Expression From 1791 To 1917, Michael T. Gibson
Fordham Law Review
No abstract provided.
Program For The 13th Annual John F. Sonnett Memorial Lecture Series: The Supreme Court Of The United States, William T. Coleman
Program For The 13th Annual John F. Sonnett Memorial Lecture Series: The Supreme Court Of The United States, William T. Coleman
Miscellaneous
Program from "The Supreme Court of the United States: Managing its Caseload to Achieve its Constitutional Purposes" by William T. Coleman, partner at O'Melveny & Myers LLP and former U.S. Secretary of Transportation (1975-1977), about the size of the Supreme Court's caseload and the resulting repercussions.
Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen
Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen
Faculty Scholarship
During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …
National League Of Cities V. Usery―The Commerce Power And State Sovereignty Redivivus , Bernard Schwartz
National League Of Cities V. Usery―The Commerce Power And State Sovereignty Redivivus , Bernard Schwartz
Fordham Law Review
No abstract provided.
United States Trust Company Of New York V. New Jersey―The Contract Clause In A Complex Society, Robert A. Mctamaney
United States Trust Company Of New York V. New Jersey―The Contract Clause In A Complex Society, Robert A. Mctamaney
Fordham Law Review
No abstract provided.
Quasi In Rem On The Heels Of Shaffer V. Heitner: If International Shoe Fits . . ., Suzanne T. Marquard
Quasi In Rem On The Heels Of Shaffer V. Heitner: If International Shoe Fits . . ., Suzanne T. Marquard
Fordham Law Review
No abstract provided.
Reason And The Fourth Amendment―The Burger Court And The Exclusionary Rule , Norman M. Robertson
Reason And The Fourth Amendment―The Burger Court And The Exclusionary Rule , Norman M. Robertson
Fordham Law Review
No abstract provided.
Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.
Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.
Fordham Urban Law Journal
Edward J. Berbusse, S.J. reviews The Law of Obscenity by Frederick F. Schauer. Schauer's book provides a historical perspective on obscenity law, tracking developments through several centuries. It begins with a look at obscenity law within the Church during the 16th and moves through civil law in England and up to the present in the United States. The book then explores the Miller v. California decision and the Supreme Court's move to a local standard, rather than national, of obscenity. In addition to the Miller case, Schauer looks at other important decisions which developed the modern body of law focusing …
Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski
Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski
Faculty Scholarship
IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers' intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that …
Lobbying The Supreme Court—An Appraisal Of "Political Science Folklore", Nathan Hakman
Lobbying The Supreme Court—An Appraisal Of "Political Science Folklore", Nathan Hakman
Fordham Law Review
No abstract provided.
Interrogation Of Criminal Defendants—Some Views On Miranda V. Arizona
Interrogation Of Criminal Defendants—Some Views On Miranda V. Arizona
Fordham Law Review
The decision in Miranda v. Arizona is another of the United States Supreme Court's major efforts directed at the protection of individual liberties. The tremendous controversy engendered by the decision prompted the Editorial Board to invite a number of scholars to express their views on the case. These remarks follow a digest of the opinion of the Court.