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Articles 1 - 30 of 73
Full-Text Articles in Law
Demosprudence, Interactive Federalism, And Twenty Years Of Sheff V. O'Neill, Justin R. Long
Demosprudence, Interactive Federalism, And Twenty Years Of Sheff V. O'Neill, Justin R. Long
Law Faculty Research Publications
Professor Lani Guinier and others have recently developed a theory called "demosprudence" that explains the democracy-enhancing potential of certain types of US. Supreme Court dissents. Separately, state constitutionalists have described state constitutions' capacity to offer a base of resistance against the U.S. Supreme Court's narrow conception of individual rights. Applying these two seemingly unrelated theories to school desegregation litigation in Connecticut and to same-sex marriage litigation in Iowa, this Essay suggests that certain state constitutional decisions might function like U.S. Supreme Court dissents to enhance democratic activism. In this way, interactive federalism might usefully serve as a category of demosprudence.
Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey, Makau Wa Mutua
Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey, Makau Wa Mutua
Book Reviews
This review of Mary Dudziak’s hugely important book contends that the author conflates the struggle for civil rights in the United States with the struggle for black majority rule in Kenya. While the two struggles are linked by white domination and the quest for blacks to free themselves from that domination, the book fails to interrogate and contextualize the limitations of equal protection norms for minorities in two vastly different political milieus. Dudziak does not problematize Thurgood Marshall’s blind insistence that the independence Kenyan constitution accord the economically dominant and oppressive white minority in colonial Kenya the same equal protections …
The Structural Case For Vertical Maximalism, Tara Leigh Grove
The Structural Case For Vertical Maximalism, Tara Leigh Grove
Faculty Publications
Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …
What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson
What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson
Faculty Publications
Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.
2009-2010 Supreme Court Preview: Schedule, Institute Of Bill Of Rights Law, William & Mary Law School
2009-2010 Supreme Court Preview: Schedule, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 2: Justice Sotomayor The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: Justice Sotomayor The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 1: Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
2009-2010 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School
2009-2010 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt
The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt
All Faculty Scholarship
Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …
Understanding Pleading Doctrine, A. Benjamin Spencer
Understanding Pleading Doctrine, A. Benjamin Spencer
Faculty Publications
Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Articles
In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. …
Book Review Of The Supreme Court: An Essential History, Leslie A. Street
Book Review Of The Supreme Court: An Essential History, Leslie A. Street
Library Staff Publications
No abstract provided.
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.
The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl
The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl
Faculty Publications
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 …
An Open Letter From Heaven To Barack Obama, F. Michael Higginbotham
An Open Letter From Heaven To Barack Obama, F. Michael Higginbotham
All Faculty Scholarship
Since the passing of A. Leon Higginbotham, Jr. in 1998, many have wondered what the award winning author, longest-serving black federal judge, first black to head a federal regulatory agency, recipient of the Spingarn Medal and the Congressional Medal of Freedom, and author of the famous “Open Letter to Clarence Thomas” would think of the state of race relations today. Appointed to the Federal Trade Commission in 1962, Higginbotham served in several powerful federal positions including Vice-Chairman of the National Commission on the Causes and Prevention of Violence, member of the first wiretap surveillance court, and chief judge of a …
Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus
Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus
Faculty Publications
No abstract provided.
Viewpoint Diversity And Media Consolidation: An Empirical Study, Daniel E. Ho, Kevin M. Quinn
Viewpoint Diversity And Media Consolidation: An Empirical Study, Daniel E. Ho, Kevin M. Quinn
Faculty Articles
One of the central predicates of legal regulation of media ownership is that ownership consolidation reduces substantive viewpoint diversity. Appellate courts and, in turn, the Federal Communications Commission have increasingly demanded evidence for this convergence hypothesis, but extant empirical measures of viewpoint diversity sidestep the problem, ignoring diversity, viewpoints, or both. Our Article develops and offers a finely tuned, time-varying statistical measure of editorial viewpoint diversity, based on a new database of over 1600 editorial positions in twenty-five top newspapers from 1988-2004. Using this new measure, we assess the validity of the convergence hypothesis by examining the evolution of editorial …
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Reviews
Of all of Chicago's law and economics conquests, antitrust was the most complete and resounding victory. Chicago, of course, is a synecdoche for ideological currents that swept through and from Hyde Park beginning in the 1950s and reached their peak in the 1970s and 1980s. From early roots in antitrust and economic regulation, the Chicago School branched outward, first to adjacent fields like securities regulation, corporate law, property, and contracts, and eventually to more distant horizons like sexuality and family law. Predictably, the Chicago School exerted its greatest influence in fields closely tied to commercial regulation. But never did Chicago …
Florida V. Bostick, Yale Kamisar
Florida V. Bostick, Yale Kamisar
Other Publications
501 U.S. 429 (1991), argued 26 Feb. 1991, decided 20 June 1991 by vote of 6 to 3; O’Connor for the Court, Marshall in dissent. What constitutes a “seizure” within the meaning of the Fourth Amendment? Police practices need not be “reasonable”—indeed, are not regulated by the Fourth Amendment at all—unless they are considered “searches” or “seizures.” In this case, which involved a growing antidrug police tactic known as “working the buses” (randomly approaching a bus passenger and asking him for identification and to grant permission to search his luggage), the Court took a narrow view of what constitutes a …
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird
How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird
Faculty Articles
This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.
We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed …
Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch
Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch
Faculty Articles
In this Article, we examine the effect of judicial ideology on IP case outcomes before the Supreme Court from 1954 to 2006. We find that ideology is a significant determinant of IP cases: the more conservative a justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property. We also find evidence that the relationship is more complex than a purely ideological account would suggest; our results suggest that law matters too. We find that a number of factors that are specific to IP are also consequential. Additionally, we show …
Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton
Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton
Publications
This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.
More specifically, courts increasingly permit government …
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken
UIC Law Open Access Faculty Scholarship
No abstract provided.
Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers
Isaiah And His Young Disciples: Justice Brandeis And His Law Clerks, Todd C. Peppers
Scholarly Articles
It cannot be said that Louis Dembitz Brandeis has suffered from a lack of scholarly attention. Brandeis is considered to be one of the most influential Justices in the history of the U.S. Supreme Court, and scores of books and law-review articles have been written about Brandeis the lawyer, the political insider, the Zionist, and the Justice. A case can be made, however, that history has not fully recognized the important and lasting contribution that Brandeis made to the development of the institutional rules and norms surrounding the Supreme Court law clerk, an oversight that this essay seeks to rectify.
Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines
Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines
Management and Marketing Faculty Publications
In this article, we examine the issues that bring First Amendment jurisprudence to the grant of certiorari in Pleasant Grove v. Summum, scheduled for oral argument in the Supreme Court of the United States in November. We examine the historical basis for America’s religious heritage, the historical judicial treatment of the religious clauses, and the erosion of the wall of separation between church and state. We examine the Ten Commandments, finding inherent discrimination present in modern-day attempts to advance a particular version of the Ten Commandments as secular. By drawing upon Rousseau’s civic religion, we suggest alternative routes for the …
The Violent Bear It Away: Emmett Till & The Modernization Of Law Enforcement In Mississippi, Anders Walker
The Violent Bear It Away: Emmett Till & The Modernization Of Law Enforcement In Mississippi, Anders Walker
All Faculty Scholarship
Few racially motivated crimes have left a more lasting imprint on American memory than the death of Emmett Till. Yet, even as Till's murder in Mississippi in 1955 has come to be remembered as a catalyst for the civil rights movement, it contributed to something else as well. Precisely because it came on the heels of the Supreme Court's 1954 ruling in Brown v. Board of Education, Till's death convinced Mississippi Governor James P. Coleman that certain aspects of the state's handling of racial matters had to change. Afraid that popular outrage over racial violence might encourage federal intervention in …
Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie
Remaking The United States Supreme Court In The Courts' Of Appeals Image, Tracey E. George, Chris Guthrie
Vanderbilt Law School Faculty Publications
We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.