Law Commons^™

5 Legal Developments You May Have Missed In 2015, Donald Roth

Faculty Work Comprehensive List

Posting summarizing important, but less headline-making, developments in American law during the past year from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/5-legal-developments-you-may-have-missed-in-2015/

How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason

Faculty Scholarship at Penn Carey Law

In this special report, Knoll and Mason discuss how the Massachusetts Supreme Judicial Court should apply Wynne when it hears on remand First Marblehead v. Commissioner of Revenue. The authors conclude that when it originally heard the case, the Massachusetts court mistakenly considered, as part of its internal consistency analysis, whether Gate Holdings Inc. experienced double state taxation. As developed by the U.S. Supreme Court and most recently applied in Wynne, the internal consistency test is not concerned with actual double taxation that may arise from the interaction of different states’ laws. Rather, the test is designed to determine …

Right-To-Die, Bruce Morton

Bruce N. Morton

No abstract provided.

Traffic Stops, Minority Motorists, And The Future Of The Fourth Amendment, David Sklansky

David A Sklansky

No abstract provided.

Do The Haves Come Out Ahead - Winning And Losing In State Supreme Courts, 1870-1970, Stanton Wheeler, Bliss Cartwright, Robert Kagan, Lawrence Friedman

Robert Kagan

No abstract provided.

Not All Black And White, Alan E. Garfield

Alan E Garfield

No abstract provided.

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 …

The Influence Of Setting On Supreme Court Religious Expression Decisions, Joseph J. Hemmer Jr.

Communication and Theater Association of Minnesota Journal

The First Amendment prohibits any establishment of religion, a dicta that has been applied in an apparently inconsistent manner by the Supreme Court when called upon to evaluate various forms of verbal and nonverbal religious communication. Court decisions have approved religious prayers and displays in government settings. When such exercises and displays were introduced to the public school academic setting, the Court chose to disallow the practice. An examination of judicial opinions reveals that justices recognize three factors inherent to the academic setting which justify the apparently contradictory decisions. Because of the captive nature of the audience, the presence of …

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 …

Federal Clean Air Act Preemption Of Public Nuisance Claims: The Case For Supreme Court Resolution, Richard O. Faulk

Richard Faulk

The current circuit-by-circuit and state-by-state approach to the question of preemption precludes any uniform standards for environmental compliance and enforcement, and also vitiates any reliable basis for capital investment, expanded operations, and workforce stability. Because Congress enacted the CAA to promote those goals—as well as jobs and a healthy economy—delaying review prolongs the uncertainty and intensifies the dilemma facing not only the courts, but also the regulated community.

The Semi-Retirement Of Senior Supreme Court Justices: Examining Their Service On The Courts Of Appeals, Jon A. Gryskiewicz

Seton Hall Circuit Review

No abstract provided.

The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield

Alan E Garfield

No abstract provided.

7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti

Corey A Ciocchetti

These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

The Law Book: From Hammurabi To The International Criminal Court, 250 Milestones In The History Of Law (Sterling), Michael Roffer

Books

The Law Book explores 250 of the most significant legal issues, cases, trials, and events that have profoundly changed our world. Although the heaviest emphasis is on American law it also touches on more than a dozen countries and the European Union, laws relating to Antarctica and Outer Space, and principles of international law. Among the topics it explores are the earliest legal codes, the role of juries, slavery and emancipation, civil rights, Native Americans, copyright, the press and free speech, immigration, censorship and obscenity, the environment, war and international relations, war crimes and trials, the insanity defense, taxation, prohibition, …

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 …

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

The Journal of Appellate Practice and Process

No abstract provided.

Will Oklahoma Put An Innocent Man To Death?, Lauren Carasik

Media Presence

No abstract provided.

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

Perspectives On Marriage Equality And The Supreme Court, The Editors

Fordham Law Review

On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …