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Articles 1 - 8 of 8

Full-Text Articles in Law

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt Oct 2009

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the ...


Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen Apr 2009

Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen

David S. Bogen

No abstract provided.


Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone Jan 2009

Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone

Faculty Publications

In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into ...


Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George Jan 2009

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.


Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain Jan 2009

Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain

Faculty Scholarship

Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme ...


Justice Ginsburg's Footnotes, Jay Wexler Jan 2009

Justice Ginsburg's Footnotes, Jay Wexler

Faculty Scholarship

In this short article written for the New England School of Law's March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg's footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme ...


A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric Easton Jan 2009

A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric Easton

All Faculty Scholarship

In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one ...


Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan Jan 2009

Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan

All Faculty Scholarship

As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive ...