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Full-Text Articles in Law
Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival
Environmental Law In The Supreme Court: Highlights From The Marshall Papers, Robert V. Percival
Robert Percival
Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits …
Limiting Judges: Placing Limits On Judges' Power In Hard Look Review, Tobias R. Coleman
Limiting Judges: Placing Limits On Judges' Power In Hard Look Review, Tobias R. Coleman
Tobias R Coleman
The “hard look” standard of review in administrative law has long provided judges broad discretion to strike down agency actions. The virtually unlimited nature of hard look review creates the danger that judges will craft decisions to achieve their desired policy outcomes. Though judges have acknowledged that this potential for outcome-oriented decisionmaking exists, they have consistently downplayed the danger of outcome-oriented decisionmaking—despite empirical evidence showing otherwise. One practical way to reduce the danger of outcome-oriented decisionmaking in hard look review is to place limit on judges’ powers. In FCC v. Fox Television Stations, Inc., the Supreme Court began to explore …
Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell
Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell
Angela J. Campbell
This article tells the story of how and why a single letter complaining about “dirty words” in a comedy routine broadcast by a radio station ended up in the Supreme Court and how a closely divided Court found that it was constitutional for the Federal Communications Commission to admonish the station for the broadcast even though the speech was protected by the First Amendment and its distribution by other means could not be could not be prohibited. This case, FCC v. Pacifica Foundation, was controversial when it was decided in 1978, and it has become more controversial because of the …
Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes
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 …
La Cassazione Interviene Di Nuovo Sulle Norme Di Condotta Degli Intermediari Finanziari, Valerio Sangiovanni
La Cassazione Interviene Di Nuovo Sulle Norme Di Condotta Degli Intermediari Finanziari, Valerio Sangiovanni
Valerio Sangiovanni
No abstract provided.
Book Review: The Constitution In The Supreme Court: The First Hundred Years, 1789-1888., David S. Bogen
Book Review: The Constitution In The Supreme Court: The First Hundred Years, 1789-1888., David S. Bogen
David S. Bogen
No abstract provided.
Recent Decisions Of The Supreme Court In Labor Law, David S. Bogen
Recent Decisions Of The Supreme Court In Labor Law, David S. Bogen
David S. Bogen
No abstract provided.
Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen
Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen
David S. Bogen
No abstract provided.
Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher
Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher
Matthew L.M. Fletcher
The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to …
Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag
Taking The Measure Of Ideology: Empirically Measuring Supreme Court Cases, Tonja Jacobi, Matthew Sag
Tonja Jacobi
Empirical legal studies have become increasingly popular and influential, but empirical analysis is only as good as its tools. Until recently, no sophisticated measure of case outcomes existed. Jacobi (2009) developed three possible measures of case outcomes, based on three common theories of how Justices balance the trade-off between outcome optimization and coalition maximization. This Article extends Jacobi’s earlier theoretical work by empirically testing those competing measures of case outcomes.
The competing measures are initially assessed against a dataset of over 8000 Supreme Court cases decided between 1953 and 2006. The measures are also assessed in a more targeted fashion …
Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher
Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher
Matthew L.M. Fletcher
The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in …
Trivialising Justice: Reservation Under The Rule Of Law, Ashok Agrwaal
Trivialising Justice: Reservation Under The Rule Of Law, Ashok Agrwaal
Ashok Agrwaal
The idea for the paper was born out of a consultation called by the Calcutta Research Group (CRG), on critically engaging with the issue of social justice in India. The discussions ranged over a broad spectrum, from the gritty essence of social justice issues in daily life, to theoretical constructs based upon accepted cannons, to the notion of examining the matter afresh, from first principles. After several false starts, I realised that I was allowing the vastness of the issue to overwhelm me. Finally, I decided to choose a theme and strictly adhere to the limitations imposed by my choice. …
Contempt Of Court And Free Expression - Need For A Delicate Balance, G.V Mahesh Nath
Contempt Of Court And Free Expression - Need For A Delicate Balance, G.V Mahesh Nath
G.V Mahesh Nath
Free expression is the fundamental fountain-head of democracy. The right of free expression does not however confer right to denigrate others right of person and reputation as such the right of free expression is subject to reasonable restrictions. Bonafide criticism of any system or institution including the judiciary cannot be objected on any pretext, be it under the conferred constitutional power or the statutory contempt law. The freedom of speech bestowed under the constitution and the independence of the judiciary are the two essential and most important constitutes of democracy in a country. Reconciling these two competing public interest issues …
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds
Heller, High Water(Mark)? Lower Courts And The New Right To Keep And Bear Arms, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
This article, written for a symposium held at the University of California-Hastings, surveys lower court decisions applying Heller and the right to keep and bear arms it recognized to federal, state, and local gun laws. While no laws have, to date, been invalidated -- in part because of the strong signals sent by the Heller Court in the opinion -- the Court's recognition that the Second Amendment guarantees an individual right has altered the way in which courts treat gun ownership and, in some cases, has caused non-judicial actors to legislate "in the shadow" of Heller.
The "New Protectionism" And The American Common Market, Brannon P. Denning, Norman R. Williams
The "New Protectionism" And The American Common Market, Brannon P. Denning, Norman R. Williams
Brannon P. Denning
For nearly two centuries, the U.S. Constitution through the dormant Commerce Clause has protected the American common market from protectionist commercial state regulations and taxes. During the past two terms,however, the U.S. Supreme Court created a new exception to the dormant Commerce Clause for protectionist state and local taxes and regulations that favor public rather than private entities. In this Article, we describe this “New Protectionism” and argue that the Court’s embrace of it is profoundly misguided. As we document, there is no material difference, economically or constitutionally, between public protectionism and private protectionism. As illustrated by the variety of …
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
David S. Bogen
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed …