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2012

United States Supreme Court

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Articles 1 - 30 of 88

Full-Text Articles in Law

Congress Needs To Repair The Court's Damage To § 1983, Ivan E. Bodensteiner Dec 2012

Congress Needs To Repair The Court's Damage To § 1983, Ivan E. Bodensteiner

Ivan E. Bodensteiner

Today it is not unusual for a § 1983 plaintiff to establish a violation of the U.S. Constitution and resulting injuries, yet be denied damages because of the Supreme Court's misinterpretation of the 1871 statute. This anomaly is the result of several defenses created by the Court, including absolute and qualified immunity, the rejection of respondeat superior liability for municipalities, and the expansion of sovereign immunity, based, in part, on a misinterpretation of the Eleventh Amendment. Several other rulings of the Court narrow the circumstances under which private parties are subject to § 1983 liability, refuse to exempt § 1983 actions ...


Dickens Redux: How American Child Labor Law Became A Con Game, Seymour Moskowitz Dec 2012

Dickens Redux: How American Child Labor Law Became A Con Game, Seymour Moskowitz

Seymour H. Moskowitz

Millions of American teens are employed today in a variety of workplaces. The jobs they hold typically provide little human capital for their future economic self·sufficiency, and pose substantial immediate and long-term safety, academic, and behavioral risks for this generation. This Article seeks to answer the question of how American law and society reached this situation, which has such disastrous effects for working youth, their families, and society as a whole. Three main themes are developed: 1. Child labor has always been part of the American economy, from colonial times until today. While there have been more than 150 ...


The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr Dec 2012

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 ...


Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros Dec 2012

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.


Attorney's Fees In Civil Rights Cases - October 2009 Term, Martin A. Schwartz Nov 2012

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 Nov 2012

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.


Unconstitutional Animus, Susannah W. Pollvogt Nov 2012

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as ...


Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso Oct 2012

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.


Confronting Supreme Court Fact Finding, Allison Orr Larsen Oct 2012

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.


Step Aside, Mr. Senator: A Request For Members Of The Senate Judiciary Committee To Give Up Their Mics, Paul E. Vaglicia Oct 2012

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 ...


A Financial Economic Theory Of Punitive Damages, Robert J. Rhee Oct 2012

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 ...


Section 7: Gay Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 7: Gay Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 5: Business, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 5: Business, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: International Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 4: International Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Election Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 3: Election Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 2: Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Determining Notoriety In Supreme Court Decisions , G. Edward White Aug 2012

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. Aug 2012

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 Aug 2012

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 Aug 2012

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 ...


A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald Aug 2012

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 Aug 2012

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 Aug 2012

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 Aug 2012

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 Jul 2012

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 ...


Workshop Text For Powerpoint: Unanimous Decisions Of The Supreme Court, Peter Aschenbrenner Jun 2012

Workshop Text For Powerpoint: Unanimous Decisions Of The Supreme Court, Peter Aschenbrenner

Peter J. Aschenbrenner

How can we explain so many unanimous decisions if justices of the United States Supreme Court are appointed by Presidents with different philosophies? Far more unanimous decisions occured in the interval 2000-2010 that would result from random decision-making.


Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton Jun 2012

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 ...


Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum Jun 2012

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 ...