Law Commons^™

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Hearing The States, Anthony Johnstone

Pepperdine Law Review

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …

Justice As Fair Division, Ian Bartrum, Kathryn Nyman, Peter Otto

Pepperdine Law Review

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court’s decision-making process might act to reverse this loop and work to depoliticize the Court …

How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon

Pepperdine Law Review

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …

The Pirate’S Code: Constitutional Conventions In U.S. Constitutional Law, Mark Tushnet

Pepperdine Law Review

A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions’ erosion has been accompanied by …

What Are The Judiciary’S Politics?, Michael W. Mcconnell

Pepperdine Law Review

What are the politics of the federal judiciary, to the extent that the federal judiciary has politics? Whose interests do federal judges represent? This Essay puts forward five different kinds of politics that characterize the federal judiciary. First, the federal judiciary represents the educated elite. Second, the federal judiciary represents past political majorities. Third, the federal judiciary is more politically balanced than the legislative or executive branches. Fourth, the federal judiciary is organized by regions, and between those regions there is significant diversity. Fifth, to the extent that the judiciary leans one way or the other, it leans toward the …

Nothing New Under The Sun: The Law-Politics Dynamic In Supreme Court Decision Making, Stephen M. Feldman

Pepperdine Law Review

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separate and independent in the process of judicial decision making. But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule …

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

Bank Of America V. City Of Miami: Standing And Causation Under The Fair Housing Act, Alan M. White

Loyola of Los Angeles Law Review

No abstract provided.

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …

Separate But (Un)Equal: Why Institutionalized Anti-Racism Is The Answer To The Never-Ending Cycle Of Plessy V. Ferguson, Maureen Johnson

University of Richmond Law Review

No abstract provided.

The President Is The Chief Executive, But Does Not Control The Mueller Probe, Bruce Green, Rebecca Roiphe

Other Publications

No abstract provided.

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …