Law Commons^™

Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank

ExpressO

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed.

Homegrown Child Pornography And The Commerce Clause: Where To Draw The Line On Interstate Production Of Child Pornography, Lauren Bianchini

American University Law Review

No abstract provided.

Documenting Discrimination In Voting: Judicial Findings Under Section 2 Of The Voting Rights Act Since 1982, Ellen D. Katz, Margaret Aisenbrey, Anna Baldwin, Emma Cheuse, Anna Weisbrodt

Other Publications

This year marks the fortieth anniversary of one of the most remarkable and consequential pieces of congressional legislation ever enacted. The Voting Rights Act of 1965 ("the VRA") targeted massive disfranchisement of African-American citizens in numerous Southern states. It imposed measures drastic in scope and extraordinary in effect. The VRA eliminated the use of literacy tests and other "devices" that Southern jurisdictions had long employed to prevent black residents from registering and voting. The VRA imposed on these jurisdictions onerous obligations to prove to federal officials that proposed changes to their electoral system would not discriminate against minority voters. Resistance …

The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham

American University Law Review

No abstract provided.

Applying 42 U.S.C. § 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson

University of Michigan Journal of Law Reform

This Note explores several interesting legal questions regarding the proper interpretation of 42 U.S.C. § 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. The Note further explores how the Fifth Circuit's and other federal courts' narrow interpretation of § 1981's application in a retail setting (which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchases) is contrary to the statute's express language, congressional intent, and to evolving concepts of contract theory, all of which reflect a commitment to the strict enforcement of civil …

Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii

Faculty Publications

This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005), …

Community Forests: A Perspective, Robert Mccullough

Community-Owned Forests: Possibilities, Experiences, and Lessons Learned (June 16-19)

22 pages.

"Robert McCullough teaches in the University of Vermont Graduate Program in Historic Preservation. He wrote The Landscape of Community: Communal Forests in New England."

Slides: Randolph Community Forest Partnerships, Ben Eisenberg

Community-Owned Forests: Possibilities, Experiences, and Lessons Learned (June 16-19)

Presenter: Ben Eisenberg, Randolph Community Forest, NH

24 slides

Local Man Phones Spiritual Leaders, Ends Up In Federal Prison: Congressional Commerce Power To Curb Discrimination Motivated Violence, Courtney C. Stirrat

Missouri Law Review

In United States v. Corum,12 the Eighth Circuit examined two categories of congressional commerce power used to eradicate religious discrimination.13 The result in this case perpetuates a split among the circuits regarding the extent of congressional authority to regulate non-economic, criminal activity. 14 This Note examines the parameters of the Commerce Clause and the continuing confusion in the Courts of Appeals following the Supreme Court's holdings in United States v. Lopez'5 and United States v. Morrison.16

Lochner: Another Time, Another Place Symposium: Lochner Centennial Conference, Larry Yackle

Faculty Scholarship

Professor Lynn Baker's contribution to this symposium' extends her longterm project both to defend and to critique the Supreme Court's decisions on the scope of congressional power.2 I find this work valuable and not a little provocative. If Baker's account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly or wrongly) with the …

Deferring, Frederick Schauer

Michigan Law Review

Many academics, upon encountering a book on deference by a leading legal theorist, would assume that the book was still another contribution to a long and prominent debate about the existence (or not) of an obligation to obey the law. But that would be a mistake. In fact, this is a book not about obligation or obedience but about deference, and it is precisely in that difference that the significance of Philip Soper's book lies. Especially in law, where the Supreme Court (sometimes) defers to the factual, legal, and even constitutional determinations of Congress and administrative agencies, where appellate courts …

The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill

University of Michigan Journal of Law Reform

Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries …

New Light On The Decision Of 1789, Sai Prakash

ExpressO

In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a …

Public Agencies As Lobbyists, Jody Freeman

ExpressO

No abstract provided.

No Constitutional Right To A Rubber Stamp, Richard J. Durbin

University of Richmond Law Review

No abstract provided.

Judicial Selection As . . . Talk Radio, Michael J. Gerhardt

University of Richmond Law Review

No abstract provided.

Justifying The Disparate Impact Standard Under A Theory Of Equal Citizenship, Rebecca S. Giltner

Michigan Journal of Race and Law

Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Faculty Articles

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

Agenda Setting, Issue Priorities, And Organizational Maintenance: The U.S. Supreme Court, 1955 To 1994, Jeff L. Yates, Andrew B. Whitford, William Gillespie

Jeff L Yates

In this study, we examine agenda setting by the U.S. Supreme Court, and ask the question of why the Court allocates more or less of its valuable agenda space to one policy issue over others. Our study environment is the policy issue composition of the Court's docket: the Court's attention to criminal justice policy issues relative to other issues. We model the Court's allocation of this agenda space as a function of internal organizational demands and external political signals. We find that this agenda responds to the issue priorities of the other branches of the federal government and the public. …

The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser

Ezra Rosser

This paper explores the history and present day implications of the Cherokee Nation's 1835 treaty-based right to a Congressional Delegate.

Proposed Legislation On Short Term Time Off In The 108th Congress, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.

The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This paper explores the history and present day implications of the Cherokee Nation's 1835 treaty-based right to a Congressional Delegate.

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

The Sec At 70: Time For Retirement?, Adam C. Pritchard

Articles

The Article proceeds as follows. Part I explains the pathologies of the SEC and explores the relation between those pathologies and the SEC's status as an independent agency. Part II then outlines an alternative regulatory structure primarily situated within the executive branch. I also argue that such a relocation of authority would enhance regulatory effectiveness while simultaneously reducing the cost of excessive regulation. The Article concludes with some thoughts about the viability of my proposal.

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

When Congress enacted the Private Securities Litigation Reform Act in 1995 ("PSLRA"), the Act's "lead plaintiff' provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel's compensation. Congress's stated purpose in enacting the lead plaintiff provision was to encourage institutional investors-pension funds, mutual …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Scholarly Works

No abstract provided.

Schiavo And Klein (Symposium), Evan H. Caminker

Articles

When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …