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Full-Text Articles in Law
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson
Articles
This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
Articles
This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk
Articles
Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …
The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos
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. …
Unearthing The Lost History Of Seminole Rock, Amy J. Wildermuth, Sanne H. Knudsen
Unearthing The Lost History Of Seminole Rock, Amy J. Wildermuth, Sanne H. Knudsen
Articles
In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole …
Substantive Habeas, Kimberly A. Thomas
Substantive Habeas, Kimberly A. Thomas
Articles
Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Articles
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …
The Puzzling Presumption Of Reviewability, Nicholas Bagley
The Puzzling Presumption Of Reviewability, Nicholas Bagley
Articles
The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Articles
In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Articles
Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …
From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz
From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz
Articles
In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …
Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand
Judicial Review And United States Supreme Court Citations To Foreign And International Law, Ronald A. Brand
Articles
Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers …
Reviving The Right To Vote, Ellen D. Katz
Reviving The Right To Vote, Ellen D. Katz
Articles
Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …
Public Ruses, James E. Krier, Christopher Serkin
Public Ruses, James E. Krier, Christopher Serkin
Articles
The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker
Articles
Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Articles
In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …
Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine
Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine
Articles
proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.
Justice, Bureaucracy, And Legal Method, Jospeh Vining
Justice, Bureaucracy, And Legal Method, Jospeh Vining
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In the real world justice denied is not justice. Talking from the beginning about access to justice, rather than simply justice, emphasizes in a salutary way this commonplace of citizen and client. Justice that is inaccessible, delayed, refused does not just sit there glowing like a grail, which those separated from it may contemplate and yearn for. It is only in imagining that justice is available to someone, and in imagining what it would be like to be that someone, that one can see the thing as justice at all. To put it in economic terms, justice is not a …
The Distrust Of Politics, Terrance Sandalow
The Distrust Of Politics, Terrance Sandalow
Articles
In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …
Judicial Protection Of Minorities, Terrance Sandalow
Judicial Protection Of Minorities, Terrance Sandalow
Articles
In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, …
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Articles
Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …
Comment On Powell V. Mccormack, Terrance Sandalow
Comment On Powell V. Mccormack, Terrance Sandalow
Articles
The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …
Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel
Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel
Articles
During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …