Law Commons^™

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Akron Law Faculty Publications

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act

Infinite Hope And Finite Disappointment: The Story Of The First Interpreters Of The Fourteenth Amendment, Elizabeth Reilly

University of Akron Press Publications

Infinite Hope and Finite Disappointment details the aspirations and promises of the 14th Amendment in the historical, legal, and sociological context within which it was framed. Part of the Reconstruction Amendments collectively known as "The Second Founding," the 14th Amendment fundamentally altered the 1787 Constitution to protect individual rights and altered the balance of power between the national government and the states. The book also shows how initial Supreme Court interpretations of the Amendment's reach hindered its applicability. Finally, the contributors investigate the current impact of the 14th Amendment.

Contents Infinite Hope: The Framers as First Interpreters The Antebellum Political …

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

Akron Law Faculty Publications

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, …

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

Martin H. Belsky

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, …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Richard L. Aynes

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Ebay Rx, Tracy A. Thomas

Akron Law Faculty Publications

From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the …

Ebay Rx, Tracy A. Thomas

Tracy A. Thomas

From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Tracy A. Thomas

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

In Defense Of The Roosevelt Court, Wilson R. Huhn

Akron Law Faculty Publications

The overriding purpose of the New Deal was to create opportunities for the common person to acquire a stake in society. The Roosevelt appointees to the Supreme Court were unwilling to allow either entrenched wealth or arbitrary governmental action to interfere with that objective. They remade the Constitution, but in so doing they returned the Constitution to its original purpose – the protection of personal liberty. The Roosevelt Court laid the foundation for a jurisprudence of human rights upon which the Warren Court and subsequent Supreme Courts have continued to build.

Two justices presently serving on the Supreme Court – …

Constitutional Jurisprudence Of Sandra Day O'Connor: A Refusal To "Foreclose The Unanticipated", Wilson R. Huhn

Akron Law Faculty Publications

Earlier this year, Justice Sandra Day O’Connor retired from the Supreme Court of the United States after 25 years of service. It would be difficult to overstate the impact that Justice O’Connor has had on the interpretation of the Constitution during her tenure on the Court. Her importance to the development of American constitutional law stems from her central position on the Supreme Court. Professor Erwin Chemerinsky has described her role in these terms:

O’Connor is in control. In virtually every area of constitutional law, her key fifth vote determines what will be the majority’s position and what will be …

Justice Scalia Reinvents Restitution, Tracy A. Thomas

Akron Law Faculty Publications

This essay criticizes the U.S. Supreme Court’s re-conceptualization of equitable restitution in the case of Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002). In Great-West, a divided Court in an opinion by Justice Scalia held that “equitable relief” authorized by the Employee Retirement Income Security Act of 1974 (ERISA) does not include claims for specific performance or restitution seeking money for breach of contract. Instead, the Court held that with respect to restitution, the term “equitable relief” includes only those restitutionary remedies which were historically available in courts of equity.

This Article levels two criticisms at …

Justice Scalia Reinvents Restitution, Tracy A. Thomas

Tracy A. Thomas

This essay criticizes the U.S. Supreme Court’s re-conceptualization of equitable restitution in the case of Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002). In Great-West, a divided Court in an opinion by Justice Scalia held that “equitable relief” authorized by the Employee Retirement Income Security Act of 1974 (ERISA) does not include claims for specific performance or restitution seeking money for breach of contract. Instead, the Court held that with respect to restitution, the term “equitable relief” includes only those restitutionary remedies which were historically available in courts of equity. This Article levels two criticisms at …

Congress' Section 5 Power And Remedial Rights, Tracy A. Thomas

Akron Law Faculty Publications

There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called “remedial” or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch …

Congress' Section 5 Power And Remedial Rights, Tracy A. Thomas

Tracy A. Thomas

There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called “remedial” or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch …

Framers' Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins

Akron Law Faculty Publications

One of the sources of the Court's inability to conduct proper constitutional analysis in military cases is its lack of access to complete and unbiased information upon which to base that analysis. In Part III, I will make an effort to suggest methods for addressing this problem alternative to simply letting the military use its special knowledge as a source of power over the Court. Part IV will demonstrate a modern example of where the problem of excessive deference can lead, and present the Court with a suggestion to use this as a context for change. Finally, the Article will …