Law Commons^™

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

The Roberts' Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commisson, Allen Shoenberger

ConLawNOW

In this January’s decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hilary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

Chief Justice Roberts And The "Forty Thieves", Keith R. Fisher, Konstantina Vagenas

ConLawNOW

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.

The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Akron Law Review

During a five day period in June, 1992, every Justice on the United States Supreme Court joined one or the other of two opinions that denied the objectivity of values—either Justice Kennedy’s majority opinion in Lee v. Weisman or Justice Scalia’s dissent in Planned Parenthood v. Casey. Both of these opinions expressed the view that normative judgments are merely human constructions. This moment represents symbolically the death of values in American law. The arrival of nihilism at the heart of American law is a world-changing event for law that must be acknowledged.

The death of values was announced by …

Obergefell V. Hodges: How The Supreme Court Should Have Decided The Case, Adam Lamparello

ConLawNOW

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

The Roberts Court And The End Of The Entity Theory, Andrew J. Trask

Akron Law Review

This Article traces the shift away from the entity theory. It begins with a discussion of the various academic treatments of the entity model, from its first formulation years ago to the more radical “trust device” theories advanced today. It then looks at the various ways in which implicitly adopting the entity model has affected various rulings in class action litigation. Finally, it discusses how the 9–0 opinions in Taylor v. Sturgell, Bayer Corp. v. Smith, and Standard Fire Insurance Co. v. Knowles (buttressed by Justice Elena Kagan’s dissent in Symczyk v. Genesis Health Co.) have made it clear that …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

The Class Abides: Class Actions And The "Roberts Court", Elizabeth J. Cabraser

Akron Law Review

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari …

Front-Loading, Avoidance, And Other Features Of The Recent Supreme Court Class Action Jurisprudence, Richard D. Freer

Akron Law Review

This Article discusses each of the thirteen Supreme Court decisions with the goal of drawing at least tentative conclusions for their impact on federal class practice. The thirteen decisions may be placed into five groups. Only three of the cases directly involve the general interpretation and application of Rule 23, while the other ten fall into four particular substantive areas. Reflecting these divisions, this Article proceeds in five parts. Part I discusses the three cases directly interpreting Rule 23. Part II addresses the three decisions involving securities classes brought under Rule 10b-5. Part III discusses the three decisions involving the …

Back To Class: Lessons From The Roberts Court Class Action Jurisprudence, Bernadette Bollas Genetin

Akron Law Review

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s …

Book Review: Much Ado About Nothing: The Brethren: Inside The Supreme Court, Richard L. Aynes

Akron Law Review

With such auspicious beginnings, The Brethren would appear to be a vital and important book which should be included upon the "required" reading list of those who wish to keep abreast of developments involving the Court and the evolution of constitutional law. Unfortunately, for anyone familiar with the decisions of the Court, the high expectations raised by The Brethren will not be met. Even when viewed in the most charitable light, the "insights" into the decision-making process to be gained from The Brethren are slight.2

The Supreme Court's Emerging Majority: Restraining The High Court Or Transforming Its Role?, Christopher E. Smith

Akron Law Review

This article will analyze the decisions and arguments about judicial restraint emanating from the increasingly dominant Reagan appointees on the Supreme Court in order to question whether these justices are achieving their purported goal or are merely continuing "activist"judicial behavior in the service of conservative political values.

Three Variations Of The Supreme Court's Legal Mind, Albert Lebowitz

Akron Law Review

With their independence, the Justices emerged, not, as Madison imagined them, a unified definition of reason but with diverging strains of legal mindedness that, as they almost inevitably clashed with each other, developed that added strength which emerges from dialectic. Madison's vision may have been too simple.

Constitutional theory is heavily concentrated in the area of judicial review, and the three issues raised in Marbury v. Madison are still subjects of heated debate and controversy. It is remarkable how topical this opinion remains.

Clouds In The Crystal Ball: Presidential Expectations And The Unpredictable Behavior Of Supreme Court Appointees, Christopher E. Smith, Kimberly A. Beuger

Akron Law Review

This article will analyze the pitfalls that presidents face in hoping that their nominees' judicial performance will comport with presidential expectations.

Unanimity On The Rehnquist Court, Thomas R. Hensley, Scott P. Johnson

Akron Law Review

The unanimous decision making process is an intriguing phenomenon. However, the process of justices with different backgrounds, attitudes, and perceptions uniting on a decision raises many difficult questions for judicial scholars. Despite these challenges, the limited amount of knowledge in the area of unanimous decision making is troubling because such decisions constitute a sizable portion of judicial decisions. For example, nearly one-half of the Court's decisions were unanimous during the 1996-1997 term. Given the Court's penchant for unanimity, it is obvious that research into this area can contribute substantially toward explaining the behavior of the Justices on the Court. Thus, …

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Akron Law Review

The legal proceedings following the 2000 election had their moments of humor. The oral argument in Bush v. Gore may have produced the most guffaws, as Joseph Klock struggled to name the Justices of the Supreme Court, or even to limit himself to those currently living. But if one finds humor in the absurd, the comic highpoint came 34 hours later (34 hours!) when the Court released its decision. Network “runners”―presumably the employees who had distinguished themselves at company picnics, the network softball league, or summer corporate challenge races―grabbed copies, dashed outside, and handed them to on-air reporters who were …

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Con Law Center Articles and Publications

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control.

This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and …