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2006

Supreme Court

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Full-Text Articles in Law

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber Dec 2006

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that ...


Rethinking Dred Scott: New Context For An Old Case, Austin Allen Dec 2006

Rethinking Dred Scott: New Context For An Old Case, Austin Allen

Chicago-Kent Law Review

Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially ...


Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman Dec 2006

Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman

Chicago-Kent Law Review

Dred Scott, without doubt, is the most controversial case in the history of the United States Supreme Court. Unlike the controversies that surround other decisions of the Court, the controversy surrounding Dred Scott does not turn on if the outcome or Chief Justice Taney's analysis was wrong, but rather on why the outcome and Chief Justice Taney's analysis were wrong. This article focuses on the political goals Taney attempted to accomplish through his decision in Dred Scott. Though there existed reasons for Taney's belief that his decision in Dred Scott would once and for all end the ...


Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson Dec 2006

Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson

Chicago-Kent Law Review

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally ...


Dred Scott And The Crisis Of 1860, Louise Weinberg Dec 2006

Dred Scott And The Crisis Of 1860, Louise Weinberg

Chicago-Kent Law Review

Recent suggestions to the contrary notwithstanding, the Dred Scott decision and the controversy over the extension of slavery into the territories were at the very center of the crisis of 1860. This paper fills in the social, political, economic, and legal backgrounds of that crisis in order to clarify the centrality of Dred Scott in the election of Abraham Lincoln and to the ensuing destruction of the Union.


Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr. Dec 2006

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.

Chicago-Kent Law Review

The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the ...


First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell Nov 2006

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.


Eminent Domain: Judicial And Legislative Responses To Kelo, Alan Weinstein Nov 2006

Eminent Domain: Judicial And Legislative Responses To Kelo, Alan Weinstein

Law Faculty Articles and Essays

It has been almost a year and a half since the Supreme Court ruled in Kelo v. City of New London, 125 S. Ct. 2655 (2005), that the federal Constitution does not bar government from using eminent domain for economic development purposes. That ruling precipitated an unprecedented negative reaction in state legislatures. 1 Now, Ohio has delivered the first post-Kelo state supreme court decision to address the constitutionality of eminent domain. On July 26, in City of Norwood v. Horney, 2006 WL 2096001, a unanimous Ohio Supreme Court rejected the arguments of the majority in Kelo and emphatically stated that ...


Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy Oct 2006

Florida East Coast Railway And The Structure Of Administrative Law, Michael P. Healy

Law Faculty Scholarly Articles

A typical Administrative Law course presents the Supreme Court's decision in United States v. Florida East Coast Railway Co. as establishing the rule that statutory text quite close to the magic words, "on the record after opportunity for an agency hearing," is needed to trigger the Administrative Procedure Act's (APA) formal hearing requirements for a rulemaking. Florida East Coast Railway is a prime example of an underrated case because, even though the case is well known, its renown is a consequence only of its black letter rule about rulemaking procedures. Many scholars and practitioners do not appreciate the ...


How Antidiscrimination Law Learned To Live With Racial Inequality, Matthew Lindsay Oct 2006

How Antidiscrimination Law Learned To Live With Racial Inequality, Matthew Lindsay

All Faculty Scholarship

This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for ...


The Roberts Court: Year 1, Lori A. Ringhand Jul 2006

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.


The Roberts Court: Year 1, Lori A. Ringhand Jul 2006

The Roberts Court: Year 1, Lori A. Ringhand

Scholarly Works

This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated ...


Supreme Court Of The United States, October Term 2005 Overview, Georgetown University Law Center, Supreme Court Institute, Rebecca Cady Jun 2006

Supreme Court Of The United States, October Term 2005 Overview, Georgetown University Law Center, Supreme Court Institute, Rebecca Cady

Supreme Court Overviews

No abstract provided.


"Lewd And Immoral": Nude Dancing, Sexual Expression, And The First Amendment, Kevin Case Jun 2006

"Lewd And Immoral": Nude Dancing, Sexual Expression, And The First Amendment, Kevin Case

Chicago-Kent Law Review

Nude dancing is a particularly awkward fit with the First Amendment. Should the Constitution protect this kind of "speech?" The question has vexed the Supreme Court. While most of the Court has agreed that nude dancing falls within the First Amendment, plurality opinions relegate nude dancing to the "outer ambit" of shielded speech, setting forth confusing and ultimately unsustainable legal tests.

This Note contends that nude dancing can convey powerful and particularized erotic messages of sexual desire, availability, and appreciation of the nude female form. It is not mere "conduct." Moreover, arguments for categorizing nude dancing as "low value" speech ...


The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn Jun 2006

The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn

Chicago-Kent Law Review

In a series of seminal cases interpreting the Fifth Amendment's Takings Clause, the United States Supreme Court has used arguments that can be called "historical" to justify its holdings and negotiate the relationship between the static language of the Constitution and the dynamic realities of American life. While historical arguments have been a recurring theme in Takings Clause jurisprudence over the past eighty years, the way in which they are used has shifted. While historical accounts of changes in American society over time once served to justify new forms of governmental intervention in the realm of private property, a ...


Where Do We Draw The Line? Partisan Gerrymandering And The State Of Texas, Whitney M. Eaton May 2006

Where Do We Draw The Line? Partisan Gerrymandering And The State Of Texas, Whitney M. Eaton

University of Richmond Law Review

No abstract provided.


Daimlerchrysler V. Cuno: An Escape From The Dormant Commerce Clause Quagmire?, S. Mohsin Reza May 2006

Daimlerchrysler V. Cuno: An Escape From The Dormant Commerce Clause Quagmire?, S. Mohsin Reza

University of Richmond Law Review

No abstract provided.


The Federal Circuit And The Supreme Court, Arthur J. Gajarsa, Lawrence P. Cogswell May 2006

The Federal Circuit And The Supreme Court, Arthur J. Gajarsa, Lawrence P. Cogswell

American University Law Review

No abstract provided.


Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig May 2006

Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.


The Constitution As Idea: Defining Describing Deciding In Kelo, Marc L. Roark Apr 2006

The Constitution As Idea: Defining Describing Deciding In Kelo, Marc L. Roark

ExpressO

In June 2005, the Supreme Court in a Five to Four Decision marked its most controversial decision in recent memory. The case of Kelo v. City of New London, set off a fire storm of response to the Court’s ruling that economic development takings satisfied the Fifth Amendment. This essay is about Kelo. It is about how the Court uses words, how the defining ability of words create institutional space in which the Court operates, and which defines things beyond the words.


John Paul Stevens, Human Rights Judge, Diane Marie Amann Mar 2006

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese ...


Exploring The Judicial Philosophy And Intellectual Independence Of John Marshall Harlan I: A Temporal Examination Across Three Chief Justices, George S. Yacoubian Feb 2006

Exploring The Judicial Philosophy And Intellectual Independence Of John Marshall Harlan I: A Temporal Examination Across Three Chief Justices, George S. Yacoubian

ExpressO

No abstract provided.


Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla Jan 2006

Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla

Scholarly Articles

None available.


Sniffing Out The Problems: A Casenote Study Of The Analysis And Effects Of The Supreme Court’S Decision In Illinois V. Caballes, Amanda M. Basch Jan 2006

Sniffing Out The Problems: A Casenote Study Of The Analysis And Effects Of The Supreme Court’S Decision In Illinois V. Caballes, Amanda M. Basch

Saint Louis University Public Law Review

No abstract provided.


Constitutional Jurisprudence Of Sandra Day O'Connor: A Refusal To "Foreclose The Unanticipated", Wilson R. Huhn Jan 2006

Constitutional Jurisprudence Of Sandra Day O'Connor: A Refusal To "Foreclose The Unanticipated", Wilson R. Huhn

Akron Law Publications

Earlier this year, Justice Sandra Day O’Connor retired from the Supreme Court of the United States after 25 years of service. It would be difficult to overstate the impact that Justice O’Connor has had on the interpretation of the Constitution during her tenure on the Court. Her importance to the development of American constitutional law stems from her central position on the Supreme Court. Professor Erwin Chemerinsky has described her role in these terms:

O’Connor is in control. In virtually every area of constitutional law, her key fifth vote determines what will be the majority’s position ...


A Poster Child For Us (Symposium: The Effects Of Capital Punishment On The Administration Of Justice), Robert Blecker Jan 2006

A Poster Child For Us (Symposium: The Effects Of Capital Punishment On The Administration Of Justice), Robert Blecker

Articles & Chapters

No abstract provided.


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Journal Articles

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.


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 ...


Imminent Change: A Recommended Response For Missouri In The Wake Of The Supreme Court’S Eminent Domain Decision In Kelo V. City Of New London, Timothy Niedbalski Jan 2006

Imminent Change: A Recommended Response For Missouri In The Wake Of The Supreme Court’S Eminent Domain Decision In Kelo V. City Of New London, Timothy Niedbalski

Saint Louis University Public Law Review

No abstract provided.


Introduction, Russell L. Weaver, David F. Partlett Jan 2006

Introduction, Russell L. Weaver, David F. Partlett

NYLS Law Review

No abstract provided.