Law Commons^™

The Majoritarian Rehnquist Court?, Neal Devins

Neal E. Devins

No abstract provided.

Active Judicial Governance, James A. Gardner

James Gardner

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Michael C. Dorf

Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff

Steven Davidoff Solomon

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

Clinton, Ginsburg, And Centrist Federalism, Russell A. Miller

Russell A. Miller

This Article examines Justice Ginsburg's overlooked federalism jurisprudence and concludes that it almost perfectly complements President Bill Clinton's New Democratic centrism, especially his pro-state federalism agenda. The Article concludes that their nuanced, "centrist" approach to federalism has two characteristics. First,t hey value the states 'governing autonomy and show respect for the state agents that realize that autonomy. Second, they credit the states as intersubjective actors engaged in the pursuit of their interests, albeit in political processes usually carried out at the federal level.

Why Justice Kennedy's Opinion In Windsor Short-Changed Same-Sex Couples, Adam Lamparello

Adam Lamparello

Supreme Court Justice Anthony Kennedy’s decision in United States v. Windsor—invalidating the Defense of Marriage Act—made the same mistake as his decision in Lawrence v. Texas: it relied upon abstract notions of ‘liberty’ rather than the text-based guarantee of equality. Same-sex couples deserve more. They are entitled to equal treatment under the United States Constitution. Bans on same-sex marriage cannot be supported by a rational state interest, and instead constitute impermissible discrimination under the Fourteenth Amendment’s Equal Protection Clause. By issuing a doctrinally muddled decision that included discussions of federalism, liberty, due process, and equal protection, Justice Kennedy missed an …

Should Federalism Shield Corruption?—Mail Fraud, State Law And Post-Lopez Analysis, George D. Brown

George D. Brown

In this Article, Professor Brown examines the issues that federal prosecutions of state and local officials pose. The analysis focuses on prosecutions under the mail fraud statute and considers the general debate over the proper scope of federal criminal law. Professor Brodin addresses the question of whether a re-examination of mail fraud would focus on constitutional or statutory issues and by utilizing the Supreme Court case United States v. Lopez examines the question of internal limits on the mail fraud statute.

An Empirical Study Of Obstacle Preemption In The Supreme Court, Gregory M. Dickinson

Gregory M Dickinson

The Supreme Court’s federal preemption decisions are notoriously unpredictable. Traditional left-right voting alignments break down in the face of competing ideological pulls. The breakdown of predictable voting blocs leaves the business interests most affected by federal preemption uncertain of the scope of potential liability to injured third parties and unsure even of whether state or federal law will be applied to future claims.

This empirical analysis of the Court’s decisions over the last fifteen years sheds light on the Court’s unique voting alignments in obstacle preemption cases. A surprising anti–obstacle preemption coalition is forming as Justice Thomas gradually positions himself …