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Articles 1 - 30 of 55
Full-Text Articles in Law
Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros
Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros
West Virginia Law Review
No abstract provided.
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso
Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso
Pepperdine Law Review
No abstract provided.
Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia
Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia
Indiana Law Journal
In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster …
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …
Determining Notoriety In Supreme Court Decisions , G. Edward White
Determining Notoriety In Supreme Court Decisions , G. Edward White
Pepperdine Law Review
No abstract provided.
Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.
Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.
Pepperdine Law Review
No abstract provided.
Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii
Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii
Pepperdine Law Review
No abstract provided.
Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry
Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry
Pepperdine Law Review
This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald
Pepperdine Law Review
A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar
Pepperdine Law Review
The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.
Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman
Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman
Pepperdine Law Review
When thinking about Dred Scott, the issue is not how do we “rehabilitate” the opinion. The goal of scholarship here is to understand the opinion, place it in the context of its own time, and explain its enduring significance. After that, we may praise or damn it, and rehabilitate it or condemn it. No one today likes the Dred Scott opinion or the result. But, this article argues that Professor Daniel A. Farber is so incensed by the opinion that he vastly overstates its historical significance including incorrectly blaming Chief Justice Taney for causing the Civil War. This article rejects …
Anti-Canonical Considerations, Edward J. Larson
Anti-Canonical Considerations, Edward J. Larson
Pepperdine Law Review
No abstract provided.
Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik
Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik
Indiana Law Journal
The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …
Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton
Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton
Michigan Law Review First Impressions
On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to …
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Michigan Law Review
A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso
Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso
Pepperdine Law Review
No abstract provided.
Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz In The Dock & Defrocked, Roy Lucas
Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz In The Dock & Defrocked, Roy Lucas
Pepperdine Law Review
No abstract provided.
Conflicting Images Of Children In First Amendment Jurisprudence, David L. Tubbs
Conflicting Images Of Children In First Amendment Jurisprudence, David L. Tubbs
Pepperdine Law Review
No abstract provided.
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Michigan Journal of Race and Law
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Michigan Journal of Race and Law
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …
Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott
Standing Lessons: What We Can Learn When Conservative Plaintiffs Lose Under Article Iii Standing Doctrine, Heather Elliott
Indiana Law Journal
The Supreme Court’s Article III standing doctrine has plagued liberal groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem cell research.
What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left-wing political agendas.
But, as some scholars have shown, a version of narrow standing helped liberals protect New Deal legislation in the …
"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn
"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn
Indiana Law Journal
No abstract provided.
Why Twombly Is Good Law (But Poorly Drafted) And Iqbal Will Be Overturned, Luke Meier
Why Twombly Is Good Law (But Poorly Drafted) And Iqbal Will Be Overturned, Luke Meier
Indiana Law Journal
The conventional wisdom with regard to the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal is that these two cases work together to usher in a new era of pleading. This reading of the cases, however, is wrong. In reality, Twombly was a valid application of the uncontroversial principle that a complaint must describe the real-world events on which the suit is based with some degree of factual specificity. The Iqbal opinion, unfortunately, mangled this concept by applying it to a complaint that described the real-world events on which the suit was based with sufficient …
Context And Trivia, Samuel Brenner
Context And Trivia, Samuel Brenner
Michigan Law Review
My academic mantra, writes Professor James C. Foster in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital, which examines the history and development of the Supreme Court's decision in Morse v. Frederick, "[is] context, context, context" (p. 2). Foster, a political scientist at Oregon State University, argues that it is necessary to approach constitutional law "by situating the U.S. Supreme Court's ... doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance" (p. 1). He seeks to do so in BONG HiTS 4 JESUS …
Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck
Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck
Pepperdine Law Review
No abstract provided.
The Roberts Court & The Business Cases, Kenneth W. Starr
The Roberts Court & The Business Cases, Kenneth W. Starr
Pepperdine Law Review
No abstract provided.
Roundtable Discussion, Vikram Amar, Joan Biskupic, Douglas W. Kmiec, Jeffrey Rosen, Kenneth W. Starr, Kathleen M. Sullivan
Roundtable Discussion, Vikram Amar, Joan Biskupic, Douglas W. Kmiec, Jeffrey Rosen, Kenneth W. Starr, Kathleen M. Sullivan
Pepperdine Law Review
No abstract provided.
Free Speech, Kathleen M. Sullivan