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Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …


“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer Feb 2016

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

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Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …


En-Gendering Economic Inequality, Michele E. Gilman Jan 2016

En-Gendering Economic Inequality, Michele E. Gilman

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We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …


Constitutionalizing Corporate Law, Elizabeth Pollman Jan 2016

Constitutionalizing Corporate Law, Elizabeth Pollman

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The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …


Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman Jan 2016

Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman

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Does a business corporation constitute a “person” that can “exercise religion” under the Religious Freedom Restoration Act of 1993? In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court answered this novel question in the affirmative, but this chapter shows that its anemic treatment of corporate law and theory provided little guidance on how to implement and limit the landmark ruling. This chapter critically examines the issues of corporate law and theory driving the Court’s analysis: (1) the theory of the corporation as a right holder; (2) corporate purpose; (3) the “closely held” category; and (4) state corporate law as …


The Scrivener's Error, Ryan David Doerfler Jan 2016

The Scrivener's Error, Ryan David Doerfler

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It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called “scrivener’s errors,” if and only if such mistakes are “absolutely clear.” The rationale is that, if a court were to recognize a less clear error, it “might be rewriting the statute rather than correcting a technical mistake.”

This Essay argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. In turn, because the current doctrine is designed to protect against one type of mistake (false positives) …


Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer Jan 2016

Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer

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For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put …


The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer Jan 2016

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

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With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …


Lobbying And The Petition Clause, Maggie Blackhawk Jan 2016

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …


A Solution In Search Of A Problem: Kelo Reform Over Ten Years, Wendell Pritchett Jan 2016

A Solution In Search Of A Problem: Kelo Reform Over Ten Years, Wendell Pritchett

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Kelo is NOT Dred Scott. Kelo is not only NOT Dred Scott, it was, as this Essay will argue, the right decision given the facts of the cases and the current state of legal jurisprudence. As an academic who has detailed the historic exploitation of eminent domain to uproot persons of color in this country, I find it interesting, and somewhat troubling, that the case has received so much criticism, much more criticism, I would argue, than other Supreme Court decisions that deserve condemnation. Certainly, eminent domain, like any other government power, must be regulated carefully. But upending …


Substantial Confusion About "Substantial Burdens", Chad Flanders Jan 2016

Substantial Confusion About "Substantial Burdens", Chad Flanders

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As the Supreme Court rev1s1ts the clash between religious belief and the Affordable Care Act (ACA) in the Zubik1 case, it is worth mulling over a key phrase in the law that governs that clash: '·substantial burden." According to the Religious Freedom Restoration Act (RFRA), the government must-provided it does not meet certain other conditions, such as showing a compelling interest-make an accommodation if it places a ''substantial burden'' on a person's religious exercise.2 If the question in the Hobby Lobby case was whether a for-profit corporation could be a ''person" that ''exercised religion,"3 the question the …


The Health Exception, Monica E. Eppinger Jan 2016

The Health Exception, Monica E. Eppinger

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The abortion doctrine laid out in Roe v. Wade permits a procedure necessary to preserve the life or the health of the pregnant woman, setting out what has come to be called the “life exception” and the “health exception.” This Article investigates the background and antecedents of the health exception, identifying three periods of formation and change up to the drafting of the Model Penal Code in 1959. It argues that theories of health lie at the heart of legal doctrine, shaping common-law treatment of abortion and persisting in nineteenth- and twentieth-century statutes. This account reveals origins of a health …