Law Commons^™

Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer S. Hendricks

College of Law Faculty Scholarship

John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly accommodates …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

College of Law Faculty Scholarship

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social …

Judges, Lawyers, And A Predictive Theory Of Legal Complexity, Benjamin H. Barton

College of Law Faculty Scholarship

This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic; each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the common interests, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges …

Book Review: Saving Law Reviews From Political Scientists, Benjamin H. Barton

College of Law Faculty Scholarship

This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …

Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the 33rd Meeting of the German Society for Comparative Law (Gesellschaft für Rechtsvergleichung) in Trier, Germany, on September 16, 2011.

Brief Of Amici Curiae On Behalf Of Appellants, Paul Dewolfe, Jr., Et Al. V. Quinton Richmond, Et Al., 2011 No. 34, A.J. Bellido De Luna, Michael Pinard

Court Briefs

In this case the appellants sought to overturn a decision by the Circuit Court for Baltimore City that held criminal defendants have a right to representation by an attorney at an initial bail hearing. Due to their concern about the quality of justice given to criminal defendants in the state’s criminal justice process, law professors at both the University of Baltimore and the University of Maryland filed an amicus brief with the Maryland Court of Appeals in support of the appellees.

The amici presented one issue: Did a Court of Appeals decision in 2001 holding that the Maryland Public Defender …

The 9/11 Effect And Its Legacy On U.S. Immigration Laws: Essays, Remarks, And Photographs, Penn State Law Immigrants' Rights Clinic, Penn State School Of International Affairs

Center for Immigrants' Rights Clinic Publications

An anthology of 9/11 reflections released today by the Penn State Law Center for Immigrants’ Rights and the Penn State School of International Affairs concentrates on the impact of the attacks on the lives of immigrants and immigration policy, providing both a report card and ideas for the future.

Amici Curiae Brief Of The Children And Youth Advocacy Clinic In Support Of Appellant. In Re The Dependency Of M.S.R. And T.S.R. V. Luak, No. 85729-6 (Wash. Sept. 16, 2011), Lisa Kelly

Court Briefs

Attorneys in Washington have the resources and established standards to effectively represent children and youth in termination of parental rights ("TPR") proceedings. Children who face TPR proceedings need the type of advice and advocacy that only trained lawyers can provide. While parents, social workers, foster parents, therapists, and guardians ad litem may provide substantial support to dependent children, only lawyers can protect their legal rights in complex adversarial proceedings, especially when all of the other parties are represented by counsel. In the context of a confidential relationship with a lawyer, a dependent child can provide critical information and meaningfully participate …

Polls, The Public, And Popular Perspectives On Constitutional Issues, Bruce G. Peabody, Peter J. Woolley

Res Gestae

No abstract provided.

Res Publica: Public Opinion, Constitutional Law, And The Supreme Court’S 2010 Term, Bruce G. Peabody, Peter J. Woolley

Res Gestae

No abstract provided.

September 14, 2011: What Does A Resurgent Marxism Look Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Does a Resurgent Marxism Look Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Supreme Court Of The United States, October Term 2011 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Cityland – Vol. 8, No. 8, Center For New York City Law

CityLand - 2011

This issue of CityLand highlights key land use and zoning developments in New York City as of September 15, 2011. The City Council approved Ocean Dreams, a 415-unit mixed-use development along Coney Island’s boardwalk, and a two-building project in Harlem that includes 100 affordable apartments. The City Planning Commission reviewed a contextual rezoning for 181 blocks in the Williamsbridge and Baychester neighborhoods of the Bronx. The Department of City Planning launched ZoLa, a new online mapping tool for zoning and land use information. The Board of Standards & Appeals granted variances for projects in the Lower East Side and Van …

Exporting The First Amendment, Timothy Zick

Popular Media

No abstract provided.

Draft Of Product Design: The Misfit Of Intellectual Property Law - 2011, Wendy J. Gordon

Scholarship Chronologically

The collection of legal rights commonly labeled "intellectual property" does not reflect any comprehensive master plan. Indeed, the label itself does a disservice in suggesting a set of laws with some coherence, cohesion, or at least commonality. 1 In fact, the various laws governing so-called intellectual property have evolved to address disparate concerns, at different times, and through distinct legal tools. 2 As a result, the canvas of intellectual property laws looks more like a messy collage - with overlaps, unmarked or blank spaces, and jagged edges - than a neat landscape characterized by careful planning and harmony.

Aligning Graduate Medical Education With Public Policy, Rob Cunningham

National Health Policy Forum

In late May–early June 2011, the Forum sponsored a site visit to Denver, Colorado, to observe innovative efforts to improve the health of Coloradans and reduce the cost of health care. The three-day agenda was designed to convey the breadth and interconnectedness of the efforts underway in Denver and to highlight both successes and challenges. The exploration concentrated on how three themes of national interest are unfolding in Denver: building and sustaining a robust and effective safety net in an evolving health care market; improving the health of people and their communities to prevent and reduce the need for health …

Legal Citation Without Fear, Maureen Cahill

Presentations

Shares tips for approaching and interpreting Bluebook instructions.

Appeal No. 0834: Maverick Oil & Gas, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2010-40 & 2011-05

Appeal No. 0833: Maverick Oil & Gas, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Orders 2010-40 & 2011-05

Selected Events On Workplace Flexibility In The Federal Government, Workplace Flexibility 2010, Georgetown University Law Center

Briefings, Hearings, and Congressional Study Group

Selected events on Workplace Flexibility in the federal government from the event: Senate Special Committee on Aging Hearing held April 30, 2008 for Workplace Flexibility 2010.

Appendix F: "A Sampling Of Government Reports On Workplace Flexibility", Workplace Flexibility 2010, Georgetown University Law Center

Briefings, Hearings, and Congressional Study Group

A Sampling of Government Reports on Workplace Flexibility from the event: Senate Special Committee on Aging Hearing held April 30, 2008 for Workplace Flexibility 2010.

Appendix E: "Telecommuting: A Case Study In Public Policy Approaches", Workplace Flexibility 2010, Georgetown University Law Center

Briefings, Hearings, and Congressional Study Group

Telecommuting: A Case Study in Public Policy Approaches from the event: Senate Special Committee on Aging Hearing held April 30, 2008 for Workplace Flexibility 2010.

Appendix D: "Some Background Information On Workplace Flexibility In Federal Agencies", Workplace Flexibility 2010, Georgetown University Law Center

Briefings, Hearings, and Congressional Study Group

Some background information on Workplace Flexibility in federal agencies from the event: Senate Special Committee on Aging Hearing held April 30, 2008 for Workplace Flexibility 2010.

Appendix C: "The Federal Employees Flexible And Compressed Work Schedules Act (Fefcwa)", Workplace Flexibility 2010, Georgetown University Law Center

Briefings, Hearings, and Congressional Study Group

The Federal Employees Flexible and Compressed Work Schedules Act (FEFCWA) from the event: Senate Special Committee on Aging Hearing held April 30, 2008 for Workplace Flexibility 2010.

Ndls Update 09/13/2011, Notre Dame Law School

NDLS Update

No abstract provided.

A Tale Of Two Climate Cases, Jonathan H. Adler

Faculty Publications

In July 2004, eight states, the City of New York, and a number of conservation organizations filed suit against several of the nation’s largest electric power producers, alleging that the power companies’ greenhouse gas (GHG) emissions contributed to the public nuisance of global warming under federal common law. Simultaneously, several of the same states sued the U.S. Environmental Protection Agency (EPA), alleging that GHG emissions constituted “pollutants” subject to regulation under the Clean Air Act (CAA). Both cases sought to impose GHG emission controls, and both were a reaction to the federal government’s steadfast refusal to adopt such policies on …

First Amendment Cosmopolitanism, Timothy Zick

Popular Media

No abstract provided.

Capturing The Judiciary: Carhart And The Undue Burden Standard, Khiara Bridges

Faculty Scholarship

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding …

'Dear Colleague' Letter, Mike Dewine, Christopher J. Dodd

Briefings, Hearings, and Congressional Study Group

'Dear Colleague' letter for the September 2006 briefing on "Children's Well-Being and the Role of Workplace Flexibility for Parents" event.

Prepared on behalf of Workplace Flexibility 2010 by Senator Mike DeWine and Senator Christopher J. Dodd.

Letter Of Invitation To A Briefing On Meeting The Needs Of Today's Families: The Role Of Workplace Flexibility, Lamar Alexander, Hillary Rodham Clinton

Briefings, Hearings, and Congressional Study Group

Letter of Invitation to a briefing on Meeting the Needs of Today's Families: The Role of Workplace Flexibility, held April 25, 2006.