Law Commons^™

Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons

University of Michigan Journal of Law Reform

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …

In Memoriam: Robert E. Shepherd, Jr., John G. Douglass

University of Richmond Law Review

No abstract provided.

Professor Robert E. Shepherd, Jr. September 22, 1937 - December 11, 2008, Hon. Walter S. Felton Jr.

University of Richmond Law Review

No abstract provided.

Professor Robert E. Shepherd, Jr.: Tending To His Flock To Improve Its Lot, John P. Cunningham

University of Richmond Law Review

No abstract provided.

The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo

Vanderbilt Law Review

This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis's vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to …

In Defense Of Ideology: A Principled Apporach To The Supreme Court Confirmation Process, Lori A. Ringhand

William & Mary Bill of Rights Journal

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck

Vanderbilt Law Review

The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.

It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first …

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …

John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman

Vanderbilt Law Review

His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact …

Sherman Minton: Restraint Against A Tide Of Activism, Linda C. Gugin

Vanderbilt Law Review

Sherman Minton was not a great U.S. Supreme Court Justice, but he was far better than the image that scholars have created for him would indicate. Although there are exceptions, scholars generally consider Minton to have been an ineffective Justice who was put on the bench only because he was a crony of President Harry Truman. Indeed, the scholars who periodically provide a list of the "greatest" and "worst" Justices inevitably relegate Minton to the "worst" category. For example, Bernard Schwartz, who classified Minton as one of the ten worst Justices, said Minton "was below mediocrity as a Justice. His …

Extraordinary Rendition: A Wrong Without A Right, Robert Johnson

University of Richmond Law Review

No abstract provided.

Bushrod Washington, Herbert A. Johnson

Vanderbilt Law Review

In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …

There Were Great Men Before Agamemnon, William R. Casto

Vanderbilt Law Review

John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.

Rufus W. Peckham And Economic Liberty, James W. Ely, Jr.

Vanderbilt Law Review

It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of Lochner v. New York (1905), one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, antitrust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and David J. Brewer were intellectual leaders of the Fuller Court, "influential within the dominant coalition and the source of the ideas that gave the Court its sweep …

The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton

Vanderbilt Law Review

David Brewer is hardly a household name in the contemporary legal academy. Most American professors of constitutional law would have a hard time placing his nearly twenty-one years of service on the U.S. Supreme Court, though most would be savvy enough to guess "Lochner era." He is probably the least well-known of all the Justices whose careers are examined in this Symposium. (Brewer's longtime colleague Rufus Peckham is probably his chief contender for this title.) For the record, Brewer sat on the Supreme Court from January of 1890 until his death in March of 1910.

In his own era, Brewer …

The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl

Michigan Law Review

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article …

Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray

Michigan Telecommunications & Technology Law Review

If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …

Appellate Review Of Patent Claim Construction: Should The Federal Circuit Be Its Own Lexicographer In Matters Related To The Seventh Amendment, Eileen M. Herlihy

Michigan Telecommunications & Technology Law Review

The Federal Circuit stated in an en banc decision in Cybor Corp. v. FAS Technologies, Inc. that the construction of patent claims is "a purely legal issue," and is therefore subject to de novo review on appeal. The Cybor decision reaffirmed the position of the majority of the Federal Circuit which had been announced in its en banc Markman decision, and proclaimed that the de novo standard of review is supported by the Supreme Court's Markman decision, a Seventh Amendment opinion. However, Cybor included strong opposition to a de novo standard of review from some of the judges of the …

The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer

Michigan Journal of Race and Law

In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. …

Yellow Snow On Sacred Sites: A Failed Application Of The Religious Freedom Restoration Act, Joshua A. Edwards

American Indian Law Review

No abstract provided.

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

Real Feminists For Motherhood Coalition, Petitioner V. Virginia, Bridget Leanne Welborn

Richmond Journal of Law and the Public Interest

JUSTICE KENNEDY delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS, and JUSTICES BREYER, STEVENS, and THOMAS joined. CHIEF JUSTICE ROBERTS filed a concurring opinion, in which JUSTICE THOMAS joined. JUSTICE SCALIA filed a dissenting opinion, in which JUSTICE ALITO joined. JUSTICE GINSBERG filed a dissenting opinion, in which JUSTICE SOUTER joined. Since this Court decided Roe v. Wade in 1973,1 we received numerous requests to reconsider the validity of that ruling or to otherwise limit its application. Petitioner renews this request, asking us to discard our much maligned and now limited Roe doctrine. After struggling with this …

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Dedication Of Issue To Chief Justice Thomas R. Fitzgerald, 42 J. Marshall L. Rev. Xxiii (2009), Editorial Board 2008-2009

UIC Law Review

No abstract provided.