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Full-Text Articles in Law

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark Jan 2024

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …


Dissenting From The Bench, Christine Venter Jan 2021

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …


Untangling Entanglement, Stephanie H. Barclay Jan 2020

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …


Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel May 2019

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …


Special Justifications, Randy J. Kozel Oct 2018

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …


Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk Jan 2018

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …


Proximate Vs. Geographic Limits On Patent Damages, Stephen Yelderman Jan 2018

Proximate Vs. Geographic Limits On Patent Damages, Stephen Yelderman

Journal Articles

The exclusive rights of a U.S. patent are limited in two important ways. First, a patent has a technical scope—only the products and methods set out in the patent’s claims may constitute infringement. Second, a patent has a geographic scope—making, using, or selling the products or methods described in the patent’s claims will only constitute infringement if that activity takes place in the United States. These boundaries are foundational features of the patent system: there can be no liability for U.S. patent infringement without an act that falls within both the technical and geographic scope of the patent.


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …


Precedent And Constitutional Structure, Randy J. Kozel Jan 2018

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …


Precedent And Speech, Randy J. Kozel Feb 2017

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …


The Missing Justice In Coleman V. Miller, Barry Cushman Jan 2017

The Missing Justice In Coleman V. Miller, Barry Cushman

Journal Articles

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full …


"To Help, Not To Hurt": Justice Thomas's Equality Canon, Nicole Stelle Garnett, William S. Consovoy Jan 2017

"To Help, Not To Hurt": Justice Thomas's Equality Canon, Nicole Stelle Garnett, William S. Consovoy

Journal Articles

To comprehend Justice Thomas’s views on racial equality requires an understanding of how his life experiences influence his approach to questions of race and the law. Recurring themes in his opinions about racial equality include his belief that racial preferences stigmatize their beneficiaries, his concern that the prevailing notion that racial integration is necessary to black achievement is rooted in a presumption of racial inferiority, his worry that affirmative action efforts provide cover for the failure to address the urgent needs of disadvantaged Americans, and his knowledge that seemingly benign policies can mask illicit motives. Finally, Justice Thomas contends that …


Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jan 2017

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …


Inside The Taft Court: Lessons From The Docket Books, Barry Cushman Jan 2016

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …


Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr. Jan 2016

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …


Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski Jan 2016

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …


The Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman Jan 2015

The Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman

Journal Articles

For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 …


William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett Jan 2006

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …


Review Essay: Liberalism And The Supreme Court, Donald P. Kommers Jan 1987

Review Essay: Liberalism And The Supreme Court, Donald P. Kommers

Journal Articles

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …


The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers Jan 1985

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.


Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple Jan 1979

Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple

Journal Articles

Zweck der folgenden Ausführungen ist die Darlegung der Bedeutung außergesetz licher Urteilsmaßstäbe in der amerikanischen Verfassungsrechtsprechung. Dabei sollen vor allem diejenigen Urteilskriterien untersucht werden, die den größten Einfluß auf das amerikanische Verfassungsrecht haben dürften; sie sollen im Kontext des gegen wärtigen case law untersucht werden.


The Value Of Comparative Constitutional Law, Donald P. Kommers Jan 1976

The Value Of Comparative Constitutional Law, Donald P. Kommers

Journal Articles

The publication of an English translation of a notable decision by a major foreign tribunal' is a fitting occasion on which to discuss the value of comparative constitutional law as a subject of academic study and as a legal discipline of valid current applicability. When referring to comparative constitutional law, I am speaking mainly of case law and most particularly of judicial decisions handed down by national tribunals empowered to review the constitutionality of legislative and executive acts.


The Supreme Court, Politics, And Modern Society, Donald P. Kommers Jan 1964

The Supreme Court, Politics, And Modern Society, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Charles S. Hyneman's The Supreme Court on Trial (New York: Atherton Press, 1963).