Law Commons^™

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

All Faculty Scholarship

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 …

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 …

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.

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.

Death By A Thousand Cuts Or Hard Bargaining?: How The Supreme Court's Indecision In Wilkie V. Robbins Improperly Eviscerates The Bivens Action, Natalie Banta

Natalie Banta

No abstract provided.

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

Zivotofsky Ii's Two Visions For Foreign Relations Law, Harlan G. Cohen

Scholarly Works

The five opinions in Zivotofsky v. Kerry – four by the Supreme Court’s Republican-nominated Justices – exposed fault-lines over foreign relations law that have remained hidden in many of the Court’s other cases. This short essay, part of an AJIL Unbound Agora on the case, explores the most notable of these fissures – that between Justice Kennedy, who wrote the majority opinion, and Chief Justice Roberts, who dissented. Their disagreement in this case highlights the two Justices’ very different visions of U.S. foreign relations law and reveals the dynamic that has defined the direction of the Court over the last …

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 …

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

All Faculty Scholarship

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

When Rhetoric Obscures Reality: The Definition Of Corruption And Its Shortcomings, Jessica Medina

Loyola of Los Angeles Law Review

Due to public scorn after the unraveling of the Watergate scandal, the Supreme Court considered the constitutionality of the Federal Election Campaign Act’s restrictions on political contributions and expenditures. Buckley v. Valeo established that no legitimate government interest existed to justify restrictions on campaign expenditures, and only the prevention of corruption or the appearance of corruption could justify restrictions on campaign contributions. Since then, the Court has struggled to articulate a definition of corruption that balances First Amendment protections with the potential for improper influence. This Article argues that the Court’s current definition of corruption is too narrow, and proposes …

The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho

Loyola of Los Angeles Law Review

In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

The Long-Term Implications Of Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

State and local governments are often responsible for disbursing federal medical, educational, and welfare benefits. What happens when they deny or revoke them unfairly? Some recipients have used 42 U.S.C. § 1983 as a way to enforce the underlying statutes. The Supreme Court decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), made this more difficult. In doing so, the Court adopted stringent rules for the use of § 1983 to enforce any federal laws, including the nation’s civil rights laws.

God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain

Law Faculty Publications

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …

"Following-To-Join" The Fifth And Ninth Circuits: Why The Supreme Court In Scialabba V. Cuellar De Osorio Erred In Interpreting The Child Status Protection Act, Justin Youngs

Loyola of Los Angeles Law Review

No abstract provided.

The End Of Class Actions?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court's decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to …

Interruptions In Search Of A Purpose: Oral Argument In The Supreme Court, October Terms 1958–60 And 2010–12, Barry Sullivan, Megan Canty

Utah Law Review

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for …

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Journal Articles

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

Petition For Writ Of Certiorari, Kosilek V. O'Brien, Jennifer Levi, Joseph L. Sulman, Abigail K. Hemani, Michele E. Connolly, James P. Devendorf, Jamie A. Santos, Christine Dieter

Faculty Scholarship

Jennifer Levi, on behalf of Gay & Lesbian Advocates & Defenders, was one of the Authors of the Petition for Writ of Certiorari, filed in the Supreme Court of the United States on behalf of the Petitioner, Michelle Kosilek, in Kosilek v. O'Brien. Questions presented to the Court by the Petitioner were 1.) whether appellate courts must parse “ques­tions that present elements both factual and legal” into their factual and legal components, so that all factual findings can be reviewed for clear error, or whether, as the First Circuit ruled, they may review such questions as a whole along …

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

Firearm Regionalism And Public Carry: Placing Southern Antebellum Case Law In Context, Eric Ruben, Saul A. Cornell

Faculty Journal Articles and Book Chapters

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.