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Articles 1 - 21 of 21
Full-Text Articles in Law
Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall
Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall
Faculty Publications By Year
For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States …
Reflection: How Multiracial Lives Matter 50 Years After Loving, Lauren Sudeall Lucas
Reflection: How Multiracial Lives Matter 50 Years After Loving, Lauren Sudeall Lucas
Faculty Publications By Year
Black Lives Matter. All Lives Matter. These two statements are both true, but connote very different sentiments in our current political reality. To further complicate matters, in this short reflection piece, I query how multiracial lives matter in the context of this heated social and political discussion about race. As a multiracial person committed to racial justice and sympathetic both to those pushing for recognition of multiracial identity and to those who worry such recognition may undermine larger movements, these are questions I have long grappled with both professionally and personally. Of course, multiracial lives matter - but do they …
Proportionality Skepticism In A Red State, Lauren Sudeall Lucas
Proportionality Skepticism In A Red State, Lauren Sudeall Lucas
Faculty Publications By Year
Commentary on Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (2016).
An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas
An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas
Faculty Publications By Year
In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …
Personal Is Political For Roberts Court, Eric J. Segall
Personal Is Political For Roberts Court, Eric J. Segall
Faculty Publications By Year
No abstract provided.
If The Supreme Court Listens To Millennials, Same Sex Marriage Will Become Legal, Tanya M. Washington
If The Supreme Court Listens To Millennials, Same Sex Marriage Will Become Legal, Tanya M. Washington
Faculty Publications By Year
No abstract provided.
What President Obama Should Have Said About The Supreme Court And The Affordable Care Act, Eric J. Segall
What President Obama Should Have Said About The Supreme Court And The Affordable Care Act, Eric J. Segall
Faculty Publications By Year
No abstract provided.
Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas
Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas
Faculty Publications By Year
The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will …
Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker
Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker
Faculty Publications By Year
In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in …
Is The Roberts Court Really A Court?, Eric J. Segall
Is The Roberts Court Really A Court?, Eric J. Segall
Faculty Publications By Year
When facing a question that the law does not clearly answer, courts are generally obligated to resolve legal disputes by examining, interpreting, and applying prior positive law such as text and precedent. This Article argues that three cases decided by the Roberts Court – Gonzales v. Carhart, District of Columbia v. Heller, and Citizens United v. Federal Election Commission – exemplify the Supreme Court’s propensity for disregarding prior positive law when deciding cases. The Author contends that the Roberts Court, quite possibly like all the Supreme Courts before it, is not a “court” at all because it does not take …
Doubts About Death, Lauren Sudeall Lucas
Doubts About Death, Lauren Sudeall Lucas
Faculty Publications By Year
No abstract provided.
Elena Kagan Can't Say That: The Sorry State Of Political Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf
Elena Kagan Can't Say That: The Sorry State Of Political Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf
Faculty Publications By Year
No abstract provided.
Reconceptualizing The Judicial Activism Debate As Judicial Responsibility: A Tale Of Two Justice Kennedys, Eric J. Segall
Reconceptualizing The Judicial Activism Debate As Judicial Responsibility: A Tale Of Two Justice Kennedys, Eric J. Segall
Faculty Publications By Year
The academic and political debate over judicial activism has been based on the overriding but patently false assumption that the Supreme Court’s performance can be measured by examining the results that it reaches in constitutional cases. When scholars and politicians equate judicial activism with judicial invalidation of the works of the political branches or the reversal of precedent, however, these commentators don’t reveal anything different than would a pure descriptive account of the Court’s decision and rationale. Moreover, the judicial activism debate is unhelpful because the ambiguous sources of constitutional interpretation cannot privilege fundamental baselines or generate consensus over correct …
Miranda And The Media: Tracing The Cultural Evolution Of A Constitutional Revolution, Russell D. Covey
Miranda And The Media: Tracing The Cultural Evolution Of A Constitutional Revolution, Russell D. Covey
Faculty Publications By Year
This article explores the depiction of interrogation in film and television from the 1940s to the present, and contrasts that imagery with the Supreme Court's interrogation jurisprudence over the same time frame. Although my treatment of the subject is necessarily only fragmentary (a comprehensive review of either topic would fill many volumes), this article hazards a few tentative hypotheses.
The Foreign Source Doctrine: Explaining The Role Of Foreign And International Law In Interpreting The Constitution, Timothy K. Kuhner
The Foreign Source Doctrine: Explaining The Role Of Foreign And International Law In Interpreting The Constitution, Timothy K. Kuhner
Faculty Publications By Year
This article brings much-needed precision to the debate over the Supreme Court's use of foreign and international law to interpret the Constitution. The debate has been both imprecise, ignoring the subtleties of the phenomenon at issue, and prematurely abstract, jumping to theoretical and ideological levels without first looking to establish the specifics. By focusing on the particular areas of constitutional text subjected to foreign sources and the longstanding lines of caselaw upon which the use of foreign sources builds, this article reveals that a doctrine has crystallized around the use of foreign sources. The doctrine specifies the precise uses to …
The Diversity Dichotomy: The Supreme Courts Reticence To Give Race A Capital R, Tanya M. Washington
The Diversity Dichotomy: The Supreme Courts Reticence To Give Race A Capital R, Tanya M. Washington
Faculty Publications By Year
No abstract provided.
5 U.S. (1 Cranch) 137, 175, Eric J. Segall
5 U.S. (1 Cranch) 137, 175, Eric J. Segall
Faculty Publications By Year
No abstract provided.
Controversial Science In The Courtroom: Daubert And The Law's Hubris, Paul S. Milich
Controversial Science In The Courtroom: Daubert And The Law's Hubris, Paul S. Milich
Faculty Publications By Year
No abstract provided.
Wimberly And Beyond: Analyzing The Refusal To Award Unemployment Compensation To Women Who Terminate Prior Employment Due To Pregnancy, Mary F. Radford
Wimberly And Beyond: Analyzing The Refusal To Award Unemployment Compensation To Women Who Terminate Prior Employment Due To Pregnancy, Mary F. Radford
Faculty Publications By Year
In Wimberly v. Labor & Industrial Relations Commission, the Supreme Court interpreted section 3304(a)(12) of the Federal Unemployment Tax Act (FUTA), which requires that states not dent unemployment benefits "solely on the basis of pregnancy," as an antidiscrimination statue, rather that one requiring preferential treatment for pregnant and formerly pregnant women. Professor Mary Radford argues that given the ambiguous legislative history and other Supreme Court precedent in the area of unemployment compensation, Wimberly could just as easily have held that FUTA's language requires preferential treatment to pregnant and formerly pregnant women. She further argues that given the current realities that …
Three Generations, No Imbeciles: New Light On Buck V. Bell, Paul A. Lombardo
Three Generations, No Imbeciles: New Light On Buck V. Bell, Paul A. Lombardo
Faculty Publications By Year
No abstract provided.
Involuntary Sterilization In Virginia: From Buck V. Bell To Poe V. Lynchburg, Paul A. Lombardo
Involuntary Sterilization In Virginia: From Buck V. Bell To Poe V. Lynchburg, Paul A. Lombardo
Faculty Publications By Year
No abstract provided.