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Full-Text Articles in Law
Courts, Culture, And The Lethal Injection Stalemate, Eric Berger
Courts, Culture, And The Lethal Injection Stalemate, Eric Berger
William & Mary Law Review
The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
William & Mary Bill of Rights Journal
Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …
The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky
The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky
William & Mary Law Review
The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen …
The Judicial Reforms Of 1937, Barry Cushman
The Judicial Reforms Of 1937, Barry Cushman
William & Mary Law Review
The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …
Packing And Unpacking State Courts, Marin K. Levy
Packing And Unpacking State Courts, Marin K. Levy
William & Mary Law Review
When it comes to court packing, questions of “should” and “can” are inextricably intertwined. The conventional wisdom has long been that federal court packing is something the President and Congress simply cannot do. Even though the Constitution’s text does not directly prohibit expanding or contracting the size of courts for political gain, many have argued that there is a longstanding norm against doing so, stemming from a commitment to judicial independence and separation of powers. And so (the argument goes), even though the political branches might otherwise be tempted to add or subtract seats to change the Court’s ideological makeup, …
First, We'll Neuter All The Judges, A. Benjamin Spencer
First, We'll Neuter All The Judges, A. Benjamin Spencer
Popular Media
No abstract provided.
Summary Dispositions As Precedent, Richard C. Chen
Summary Dispositions As Precedent, Richard C. Chen
William & Mary Law Review
The Supreme Court’s practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court’s stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court’s tendencies: summary dispositions are most commonly …
Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow
Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow
Cornell Law Faculty Publications
Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized …