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Full-Text Articles in Law
Just Extracurriculars?, Emily Gold Waldman
Just Extracurriculars?, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …
Exploring Democratic Accountability In The Administrative State, Joshua Ulan Galperin
Exploring Democratic Accountability In The Administrative State, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
This essay seeks to add to the ongoing effort of defining accountability in practical terms by presenting an inconspicuous but directly on-point case study about administrative accountability. This is the story of the United States Department of Agriculture farmer committee system, which seems to be the one and only experiment in federal administrative elections. The experiment, however, has been a failure both as a matter of practical policy and constitutional validity. Indeed, in advance of legislative debate on the 2023 Farm Bill, a USDA advisory committee publicly recommended that Congress abolish the committee system. Nevertheless, there is much to learn …
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
How would a court resolve a broker-dealer's action to enforce its class action waiver, which would require the court to disregard FINRA Rule 13204? The Supreme Court has identified one exception to the FAA's mandate: if a “contrary congressional command” displaces the FAA. Thus far, the Court has not had occasion to examine whether a class action waiver in a broker-dealer's employment agreement with an employee is enforceable under this exception. While the Court seems very supportive of these waivers, the securities industry is different. Securities arbitration is heavily regulated, and pronouncements by the SEC--when exercising power expressly delegated to …
One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green
One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
The Court's most recent major property law case, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), tackles one of the thorny, recurring issues in regulatory takings jurisprudence: what is the proper “denominator” to use in determining whether a government regulation has so greatly diminished the economic value of a parcel of land that it effects a taking? More specifically, Murr looked at what constitutes the “parcel as a whole” when a landowner holds title to two contiguous lots. Should a court assess the economic impact on the value of each lot separately or the impact on the value of the …
Raisins And Resilience: Elaborating Home's Compensation Analysis With An Eye To Coastal Climate Change Adaptation, Joshua Ulan Galperin
Raisins And Resilience: Elaborating Home's Compensation Analysis With An Eye To Coastal Climate Change Adaptation, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
The State of New Jersey, the Borough of Harvey Cedars, and the United States Army Corps of Engineers were all preparing for an event like Hurricane Sandy years before the 2012 super-storm made landfall along the Mid-Atlantic coast. The governments began, for instance, a major dune restoration project in 2005 in order to protect the New Jersey coast from massive storm surges that could destroy homes and businesses. To carry out the effort, the local governments sought to purchase the right to build along the seaward portion of property owners' land, and would then construct roughly twenty-foot-high, thirty-foot-wide dunes. If …
Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford
Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford
Elisabeth Haub School of Law Faculty Publications
Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax …
Meat Animals, Humane Standards And Other Legal Fictions, David N. Cassuto
Meat Animals, Humane Standards And Other Legal Fictions, David N. Cassuto
Elisabeth Haub School of Law Faculty Publications
Law and food are distinct concepts, though the discipline (Law and Food) implies a relationship worthy of study. The conjunction (“and”) creates meaning. However, its absence also conveys meaning. For example, “meat animal” suggests that animals can be both meat and animal. This conflation has powerful legal implications. National Meat Association v. Harris (2012) makes chillingly plain the law’s indifference to whether a meat animal is alive or dead. This essay examines the way supposedly humane federal practices ignore the systematic brutalization of “food animals” as those animals get processed into marketable flesh. It concludes with some observations about why …
An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki
An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings …
Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg
Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
This essay is about the permanent damage to the Supreme Court and to the country that may occur if the current approach to judicial appointments continues, and offers an approach to the nomination and confirmation of Supreme Court justices that will help put the Court back in its proper place - out of the eye of the elective political storm.
Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman
Thurgood Marshall: The Lawyer As Judge, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
When Thurgood Marshall took the Oath in 1967, it was the twilight of one of the Court's most brilliant periods: the Warren Court's revolution of criminal and racial justice. He was a part of that alliance for two Terms. When a new Court, and new alliances, moved the Court into the dark shadows, he and his closest colleague, William Brennan, Jr., held staunchly to their vision of the Court's historic function “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachment thereon.” He remained faithful to that vision to the end when, as a lone …
Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein
Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
It is a special privilege, and a personal joy, for me to have the opportunity to contribute a piece honoring such a revered figure. I make no claim to scholarly objectivity. My premise is simple: William J. Brennan has given us a legacy of first amendment decisions, concurrences, and dissents that reflect great honor on the jurist. My portion of this Festschrift provides selected examples of Justice Brennan's contribution, and concludes by thanking him for serving, through his opinions, as a mentor for me throughout my career as a teacher of constitutional law.
Justice William J. Brennan, Jr. - The Moral Force Of His Language, Bennett L. Gershman
Justice William J. Brennan, Jr. - The Moral Force Of His Language, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The enduring strength of Justice William J. Brennan Jr.'s constitutional vision is a tribute to his extraordinary scholarship and powerful logic. His opinions will be studied, cited, and honored for generations for their immense contribution to the constitutional protection of individual rights. But there is a further dimension to his jurisprudence that has always struck me - the moral force of his language. Justice Brennan's eloquent, passionate, and compassionate prose constantly exhorts us to a higher moral plane. To the disadvantaged, the accused, the dissident, and the condemned, Justice Brennan's words are a timeless anthem of sustenance and hope.