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Articles 1 - 7 of 7
Full-Text Articles in Law
New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza
New Groups And Old Doctrine: Rethiking Congressional Power To Enforce The Equal Protection Clause, William D. Araiza
Faculty Scholarship
No abstract provided.
Justice Ginsburg's Dissent In Bush V. Gore, Hugh Baxter
Justice Ginsburg's Dissent In Bush V. Gore, Hugh Baxter
Faculty Scholarship
In this essay, I examine Justice Ginsburg's dissenting opinion in Bush v. Gore, the decision that ended the 2000 controversy over the winner of the presidency. I look critically at Justice Ginsburg's invocation of federalism-based deference to the Florida courts' interpretations of state election law in the recount controversy. I consider also Justice Ginsburg's criticisms of the Court's remedial decision to stop the recounts. Finally, I take up the much-debated question of how to understand Justice Ginsburg's final two words: "I dissent," rather than "I respectfully dissent." My conclusion is that the omission of "respectfully" is pointed, but not for …
Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund
Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund
Faculty Scholarship
Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …
Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann
Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann
Faculty Scholarship
Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed. This body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that "their" …
On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss
On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss
Faculty Scholarship
At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …
Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain
Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain
Faculty Scholarship
Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting …
Justice Ginsburg's Footnotes, Jay D. Wexler
Justice Ginsburg's Footnotes, Jay D. Wexler
Faculty Scholarship
In this short article written for the New England School of Law's March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg's footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes …