Law Commons^™

The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Attorney’S Fees In Civil Rights Cases—October 2009 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Supreme Court 2009 Term Overview And 2010 Term Preview, Erwin Chemerinsky, Joan Biskupic, Martin A. Schwartz, Leon Friedman

Martin A. Schwartz

No abstract provided.

Roe V. Wade And The Dred Scott Decision: Justice Scalia's Peculiar Analogy In Planned Parenthood V. Casey, Jamin B. Raskin

Jamin Raskin

No abstract provided.

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

No abstract provided.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Free States Or Red States: The Supreme Court's Role In Recent Election Law Disputes, Jeremy R. Paul

Jeremy R. Paul

Professor Gardner's wide-ranging essay, Forcing States to be Free: the Emerging Constitutional Guarantee of Radical Democracy is in the best tradition of American legal scholarship. Gardner finds a common narrative in recent U.S. Supreme Court decisions involving the seemingly disparate doctrinal areas of free speech law, equal protection constraints on voting district lines, and election law. He then proceeds to criticize the Court's embarrassing performance in Bush v. Palm Beach County Canvassing Board, and its follow-up Bush v. Gore, not as a sui generis effort to manipulate political outcomes, but instead as a part of the mistaken trend he has …

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Samuel J. Levine

This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

The Lawlessness Of Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Rodger Citron

No abstract provided.

God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine

Patricia E. Salkin

This article is a brief introduction to The Albany Government Law Review symposium on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles contained in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, …

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Patricia E. Salkin

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine

Patricia E. Salkin

No abstract provided.

Gender And Securities Law In The Supreme Court, Lyman Johnson, Michelle M. Harner, Jason A. Cantone

Michelle M. Harner

The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them? This article makes a novel contribution to the growing literature on female voting patterns. We investigated whether female justices on the United States Supreme Court voted differently than, or otherwise influenced, …

A Modest Memoir: Justice Stevens’S Supreme Court Life, Laura K. Ray

Laura K. Ray

No abstract provided.

Hiding Behind The Cloak Of Invisibility: The Supreme Court And Per Curiam Opinions, Ira P. Robbins

Ira P. Robbins

From Supreme Court To Shopfloor: Mandatory Arbitration And The Reconfiguration Of Workplace Dispute Resolution, Alexander Colvin

Alexander Colvin

[Excerpt] In a series of court battles during the 1990s, employers successfully defended the use of mandatory employment arbitration against challenges that the procedures inherently undermined the statutory rights of employees. Efforts to introduce legislation in Congress aimed at reversing the Gilmer decision were unsuccessful. In 2001, the Supreme Court reaffirmed its acceptance of mandatory arbitration to resolve employment disputes in Circuit City Stores, Inc. v. Adams. However, some courts have been willing to strike down arbitration procedures that contain particularly egregious violations of due process. For example, courts have refused to enforce arbitration agreements that restrict employee damage awards, …

Notice And The Right To Be Heard: The Significance Of Old Friends, Stephen Subrin, Richard Dykstra

Stephen N. Subrin

Judges and advocates have been called upon to consider novel questions concerning the applicability of the ancient legal requirements of notice and hearing. Our purpose here is to analyze the importance of providing people with the procedural protections that notice and a hearing represent. We begin with an attempt to articulate the purposes served by requiring notice and an opportunity for a hearing. We next consider some traditional and modern limitations on those requirements and inquire whether they are justified in light of our functional analysis. The relationship between our formulation and several landmark decisions handed down by the Supreme …

Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness, Stephen Subrin

Stephen N. Subrin

We were asked to write about one of the worst United States Supreme Court opinions we had read. My article is about Ashcroft v. Iqbal because it is such an important decision in the field of federal civil litigation and the majority opinion is unsupportable in so many different ways. I explain how that opinion changes the substantive law of supervisory liability for government officials without providing the parties notice that the issue would be considered by the Court. The majority then enshrines fact pleading requirements in federal court for all cases (although denying they have done so), without following …

Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber

Mark Graber

No abstract provided.

Day 1: Health Law Experts Weigh In On The Supreme Court’S Review Of Federal Law, Chelsea Conaboy

Wendy E. Parmet

No abstract provided.

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

Rodger Citron

No abstract provided.

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Deborah Hellman

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Exceptions Clause As A Structural Safeguard, Tara Grove

Tara L. Grove

Scholars have long viewed the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. In this Article, I argue that the Clause has been fundamentally misunderstood. The Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on recent social science research, I assert that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …