Law Commons^™

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Tejas N. Narechania

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Court-Packing Plan As Symptom, Casualty, And Cause Of Gridlock, Barry Cushman

Barry Cushman

This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the …

The Need For A New National Court, Douglas D. Mcfarland, Thomas E. Baker

Thomas E. Baker

By any measure, the Supreme Court is tremendously overburdened. Statistics speak clearly on this point; sometimes they shout. After the caseload relief provided by the Judges' Bill, 4 which was passed in I925 and took effect during the I928 Term, the Supreme Court caseload grew slowly for thirty years. Beginning in the I96os, growth sharply accelerated, and during the I970S and I98os, the numbers exploded.

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Thomas E. Baker

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

The Second Dimension Of The Supreme Court, Joshua B. Fischman, Tonja Jacobi

Tonja Jacobi

Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard—and the left-right division on the Court is considered so entrenched—that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that—that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways …

From Expert Witnesses To ‘Fleeting Expletives’: The Supreme Court 2008-2009, Steven Smith

STEVEN R SMITH

The October 2008 Term of the United States Supreme Court began on October 6,2008. By the time the Term adjourned on June 29, 2009, the Court had changed or clarified the law in several important areas. (As we shall see, technically there was another argument in September 2009 as part of this Term.) The Court also seemed to foreshadow larger changes ahead, and saw Justice David Souter announce at the end of April that he would be stepping down from the Court. This article will review the major decisions of the Court during the Term. It will also analyze the …

The Solicitor General And The Evolution Of Activism, James L. Cooper

James M. Cooper

No abstract provided.

A Proposal For Improving Argument Before The United States Supreme Court, Louis Sirico

Louis J. Sirico Jr.

With rare exceptions, the U.S. Supreme Court allots thirty minutes to each side for oral argument. A review of transcripts and recordings of oral arguments confirms that the Court poses questions and makes comments with remarkable frequency. When students and lay people listen to the recordings, they may remark on the constant interruptions and view the Justices as rude interrogators. With the many questions that the Justices have and the limited time available, the advocates have little opportunity to present their arguments fully. The Justices may interrupt counsel with questions concerning the law or the relevant facts of a case. …

Opening An Oral Argument Before The Supreme Court: The Decline Of Narrative's Role, Louis J. Sirico Jr.

Louis J. Sirico Jr.

A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

James L. Kainen

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

Court-Packing And Compromise, Barry Cushman

Barry Cushman

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than …

Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman

Stephen M. Feldman

How do law and politics intertwine in Supreme Court adjudication? Traditionally, in law schools and political science departments, scholars refused to mix law and politics. Law professors insisted that legal texts and doctrines controlled Supreme Court decision making, while political scientists maintained that political ideologies dictated the justices' votes. In the late twentieth century, some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct. They attempted to stir law and politics together, but ended with an oil-and-water type of mix; law and politics settled apart. The best approach, as presented in …

Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.

Brannon P. Denning

In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Calmly To Poise The Scales Of Justice: A History Of The Courts Of The District Of Columbia Circuit, Jeffrey Morris, Chris Rohmann

Jeffrey B. Morris

No abstract provided.

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. 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 under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti

Corey A Ciocchetti

The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …

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

Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent

Brannon P. Denning

Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …

Circumstance And Strategy: Jointly Authored Supreme Court Opinions, Laura Ray

Laura K. Ray

The standard form of authorship for a Supreme Court opinion is a single author who then may be joined by any colleagues who are in agreement. There is, however, a significant and overlooked variant of this form, one used in a small cluster of major cases, most of them landmark decisions, over the past seventy years: the jointly authored opinion. In these cases, there may be as many as nine authors signing an opinion (as in Cooper v. Aaron) or as few as two (as in McConnell v. FEC). All the signatories may be credited with the entire opinion (as …

Lawyering Decisions—October 2009 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart

Melissa R Hart

No abstract provided.