Law Commons^™

Overvaluing Uniformity, Amanda Frost

Articles in Law Reviews & Other Academic Journals

"E NSURING the uniform interpretation of federal law has long been considered one of the federal courts' primary objectives, and uniformity is regularly cited in some of the most intractable debates about the structure and function of the federal court system. For example, specialized courts are lauded for their ability to ensure uniformity in the areas of law over which they have jurisdic- tion. Similarly, proponents of exclusive federal jurisdiction contend that the federal courts provide greater consistency in the interpre- tation of federal law than could fifty different state courts. Some commentators claim that Congress' power to create exceptions …

Overvaluing Uniformity, Amanda Frost

Amanda Frost

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Standing In The Way Of Clarity: Hein V. Freedom From Religion Foundation, Inc., Mark Wankum

University of Arkansas at Little Rock Law Review

This article deals with the often misunderstood and maligned issue of taxpayer standing. It seeks to explore the Court's standing jurisprudence as it has evolved from "cases and controversies" to a modern constitutional doctrine. The article begins with a discussion of the Framers' judiciary and the development of a modern standing doctrine. It then turns to the area of taxpayer and citizen suits, exploring the judicial landmarks and landmines from Frothigham v. Mellon to Flast. Next, applications and limitations of the Flast test during the Burger, Rehnquist, and early Roberts Courts are explored, before turning to the most recent decision …

Judgments Of The United States Supreme Court And The South African Constitutional Court As A Basis For A Universal Method To Resolve Conflicts Between Fundamental Rights, Daniel H. Erskine

Daniel H. Erskine

This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court’s decisions in the Soobramoney, …

Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine

American Indian Law Review

No abstract provided.