Law Commons^™

December 22, 2008: A New Kind Of Faith, Bruce Ledewitz

Hallowed Secularism

Blog post, “A New Kind of Faith“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 7, 2008: The Conclusion Of For The Establishment Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Conclusion of For the Establishment of Religion “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Brown And The Colorblind Constitution, Christopher W. Schmidt

All Faculty Scholarship

This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

November 25, 2008: Pleasant Grove City V. Summum, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Pleasant Grove City v. Summum“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Overvaluing Uniformity, Amanda Frost

Articles in Law Reviews & Other Academic Journals

"E NSURING the uniform interpretation of federal law has long been considered one of the federal courts' primary objectives, and uniformity is regularly cited in some of the most intractable debates about the structure and function of the federal court system. For example, specialized courts are lauded for their ability to ensure uniformity in the areas of law over which they have jurisdic- tion. Similarly, proponents of exclusive federal jurisdiction contend that the federal courts provide greater consistency in the interpre- tation of federal law than could fifty different state courts. Some commentators claim that Congress' power to create exceptions …

Justiciable Generalized Grievances, Kimberly L. Wehle

All Faculty Scholarship

The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek …

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

September 23, 2008: Excerpt From For The Establishment Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Excerpt from For the Establishment of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 3, 2008: Is There A Common Core To Religion?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is There a Common Core to Religion?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

U.S. Supreme Court Interviews On Effective Legal Writing – Part Iii, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

This column concludes a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. The justices discussed usage and grammar issues, as well as their own pet peeves as readers of legal writing.

Interview With Barbara Atkins And Janet Mitchell By Andrea L’Hommedieu, Barbara M. Atkins, Janet F. Mitchell

George J. Mitchell Oral History Project

Biographical Note
Barbara (Mitchell) Atkins was born in July, 1935, in Waterville, Maine. She grew up with four older brothers: John, Paul, Robert, and George Mitchell (Sr.). Her mother, Mintaha, was a weaver in the woolen mills in Waterville, and her father, George, Sr., was with the Central Maine Power Company and with the Colby College maintenance department. The family practiced the Maronite Roman Catholic rite of Lebanese descent. Her mother was born in Lebanon and immigrated in 1920. Barbara attended St. Joseph’s elementary school, Waterville Junior High School, and Waterville High School, where she played volleyball, basketball, was a …

July 6, 2008: For The Establishment Of Religion: Where Are We Now?, Bruce Ledewitz

Hallowed Secularism

Blog post, “For the Establishment of Religion: Where Are We Now?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

U.S. Supreme Court Interviews On Effective Legal Writing – Part Ii, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

This column continues a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. In addition to discussing the elements of effective legal writing, the justices talked about their own writing processes.

No Civilized System Of Justice, Book Review: The Day Freedom Died: The Colfax Massacre, The Supreme Court, And The Betrayal Of Reconstruction, Sonja R. West

Scholarly Works

A book review of The Day Freedom Died: The Colfax Massacre, The Supreme Court, and The Betrayal of Reconstruction by Charles Lane (Henry Holt 2008).

June 28, 2008: The Kennedy Court On Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Kennedy Court on Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

U.S. Supreme Court Interviews On Effective Legal Writing – Part I, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

This column begins a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. This first part explores the two aspects of good legal writing that were the most often mentioned by the justices during their interviews: clarity and conciseness.

May 21, 2008: For The Establishment Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “For the Establishment of Religion “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Stoneridge V. Scientific-Atlanta: Do Section 10(B) And Rule 10b-5 Require A Misstatement Or Omission? (Pre-Publication Draft), Rodney D. Chrisman

Faculty Publications and Presentations

This version is a draft submitted for publication and accepted prior to the Supreme Court’s ruling. The final version, published by QLR and also posted on Digital Commons, was modified subsequently to the Supreme Court ruling. Stoneridge v. Scientific-Atlanta promises to be the most important securities litigation case to reach the Supreme Court since Central Bank of Denver. In this important case, Stoneridge presents the Supreme Court with the opportunity to clarify the application of its ruling in Central Bank to liability for secondary actors under section 10(b) and rule 10b-5. This Article points out that the fundamental question plaguing …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton

All Faculty Scholarship

Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …

The Sit-Ins And The Failed State Action Revolution, Christopher W. Schmidt

Studio for Law and Culture

This article revises the traditional account of why the Supreme Court, when faced in the early 1960s with a series of cases arising out of the lunch counter sit-in movement, refused to hold racial discrimination in public accommodations unconstitutional. These cases are the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. And they did so despite a transformation in popular opinion …

If Major Wars Affect (Judicial) Fiscal Policy, How & Why?, Nancy Staudt

Faculty Working Papers

This paper seeks to identify and explain the effects of major wars on U.S. Supreme Court decision-making in the context of taxation. At first cut, one might ask why we should even expect to observe a correlation between military activities and judicial fiscal policy. After all, the justices have no authority whatsoever to adopt funding laws intended to relieve the budgetary pressures that tend to emerge in times international crisis. The Court, however, is able to contribute to the wartime revenueraising efforts indirectly by adopting a pro-government stance in the cases it decides in wartime periods. As the probability of …

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

Law Faculty Publications

No abstract provided.

Ebay Rx, Tracy A. Thomas

Akron Law Faculty Publications

From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the …

Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns

Faculty Scholarship

After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O’Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O’Connor was generally viewed as occupying the Court’s centrist, or median, position, Alito has instead continued to embrace …

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Scholarly Works

No abstract provided.

Super Medians, Lee Epstein, Tonja Jacobi

Faculty Articles

It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes”—those that are weightier or more entrenched than others—there are “super medians”—Justices so powerful that they are able to exercise significant control over the outcome and content of the Court’s decisions.

Conventional wisdom holds that Justices accumulate power by virtue of their personality, methodological approach, or even background characteristics. But our …

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …