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Supreme Court

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Institution
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Articles 31 - 60 of 311

Full-Text Articles in Law

Trump's Supreme Court, Alan E. Garfield Dec 2016

Trump's Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.


Speech And Strife, Robert L. Tsai Nov 2016

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …


The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman Oct 2016

The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman

Barry Cushman

This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the …


Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield Jul 2016

Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.


Brief Of Arbitration Professors As Amici Curiae In Support Of Respondents, At&T Mobility Llc V. Concepcion, 131 S.Ct. 1740 (Supreme Court Of The United States 2011) (No. 09-893), Karen H. Cross Jun 2016

Brief Of Arbitration Professors As Amici Curiae In Support Of Respondents, At&T Mobility Llc V. Concepcion, 131 S.Ct. 1740 (Supreme Court Of The United States 2011) (No. 09-893), Karen H. Cross

Karen Halverson Cross

No abstract provided.


Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield May 2016

Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield

Alan E Garfield

No abstract provided.


Constitutional Personhood, Zoe D. Robinson Apr 2016

Constitutional Personhood, Zoe D. Robinson

Zoe Robinson

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …


A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine Apr 2016

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Samuel J. Levine

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach …


A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine Apr 2016

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Samuel J. Levine

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to …


Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield Apr 2016

Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield

Alan E Garfield

Editorial discussing nomination of Merrick Garland to the Supreme Court.


Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke Mar 2016

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Marco Ventoruzzo

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding …


A Man Of Honor: Antonin Scalia (1936-2016), Justice Of The Supreme Court Of The United States, Alan E. Garfield Feb 2016

A Man Of Honor: Antonin Scalia (1936-2016), Justice Of The Supreme Court Of The United States, Alan E. Garfield

Alan E Garfield

Op ed on the death of Antonin Scalia.


The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports Feb 2016

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Kit Kinports

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question whether …


The Need For A New National Court, Douglas D. Mcfarland, Thomas E. Baker Feb 2016

The Need For A New National Court, Douglas D. Mcfarland, Thomas E. Baker

Thomas E. Baker

By any measure, the Supreme Court is tremendously overburdened. Statistics speak clearly on this point; sometimes they shout. After the caseload relief provided by the Judges' Bill, 4 which was passed in I925 and took effect during the I928 Term, the Supreme Court caseload grew slowly for thirty years. Beginning in the I96os, growth sharply accelerated, and during the I970S and I98os, the numbers exploded.


A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker Feb 2016

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Thomas E. Baker

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.


Linking Law And Life: Justice Sotomayor’S Judicial Voice, Laura K. Ray Jan 2016

Linking Law And Life: Justice Sotomayor’S Judicial Voice, Laura K. Ray

Laura K. Ray

Analyzing the style of Supreme Court Justice Sonia Sotomayor's legal writing.


Labor Unions And Corporations Both Play Their Vital Roles, Alan E. Garfield Jan 2016

Labor Unions And Corporations Both Play Their Vital Roles, Alan E. Garfield

Alan E Garfield

Discussion of Supreme Court case Friedrichs v. California Teachers Association.


Gay Marriage And The Problem Of Property, Andrea B. Carroll Dec 2015

Gay Marriage And The Problem Of Property, Andrea B. Carroll

Andrea Beauchamp Carroll

The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Commentary, we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may …


Not All Black And White, Alan E. Garfield Dec 2015

Not All Black And White, Alan E. Garfield

Alan E Garfield

No abstract provided.


Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk Nov 2015

Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk

Richard Faulk

The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.


The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield Nov 2015

The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield

Alan E Garfield

No abstract provided.


7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti Nov 2015

7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti

Corey A Ciocchetti

These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.


Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz Oct 2015

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield Oct 2015

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.


Death By A Thousand Cuts Or Hard Bargaining?: How The Supreme Court's Indecision In Wilkie V. Robbins Improperly Eviscerates The Bivens Action, Natalie Banta Sep 2015

Death By A Thousand Cuts Or Hard Bargaining?: How The Supreme Court's Indecision In Wilkie V. Robbins Improperly Eviscerates The Bivens Action, Natalie Banta

Natalie Banta

No abstract provided.


The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier Aug 2015

The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier

Charles W. Collier

This note argues that, in developing the contemporary mandatory-permissive standard, the Supreme Court has misunderstood the effects of presumptions on juries. Presumptions that are ‘permissive’ in theory may nevertheless be ‘mandatory’ in fact, thereby leading some juries to convict regardless of their beliefs and inclinations. Thus, these legal presumptions may undermine the moral sense and political function of the jury. Part I of this note shows, through doctrinal analysis, that the mandatory-permissive distinction is an anomaly in the Court's jurisprudence. Part II shows that this distinction is at variance with a substantial body of empirical social science research. This part …


The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz Aug 2015

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Sahar F. Aziz

No abstract provided.


The Supreme Assimilation Of Patent Law, Peter Lee Aug 2015

The Supreme Assimilation Of Patent Law, Peter Lee

Peter Lee

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …


Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla Jul 2015

Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla

Rod Smolla

None available.


George Will’S Supreme Court History Is Dubious, Alan E. Garfield Jul 2015

George Will’S Supreme Court History Is Dubious, Alan E. Garfield

Alan E Garfield

No abstract provided.