Law Commons^™

Liberty, Security, And Judicial Review In The War On Terror: An Analysis Of Supreme Court Approaches To Deference In A Post-9/11 Context, Jacob Oppler

Senior Independent Study Theses

In times of war, the government acts to suppress threats to national security, often curtailing or restricting American civil liberties. Over the course of American history, the Supreme Court has reviewed this legal conflict between civil liberties and national security policies during war. Scholars generally observe the Court’s judicial review as deferential to the government. The War on Terror presents new and different challenges to American civil liberties. While this legal conflict has emerged again under the conditions of a war against terrorism, the war itself is markedly unlike past wars in American history. This research seeks to explain how …

The Support Structure For Campaign Finance Litigation In The Roberts Court: A Research Agenda, Ann Southworth

University of Colorado Law Review

No abstract provided.

Two Excursions Into Current U.S. Supreme Court Opinion-Writing, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the last weeks in June, 2015, as the present term of the U.S. Supreme Court drew to a close, many controversial and important decisions were handed down by the Court. The substance of the decisions has been written about extensively. Two of the decisions in particular, though, caught my eye as a teacher of legal techniques, not for the importance of the subject of the particular decision, but for what they may illustrate in a teachable fashion about at least some opinion writing. The two cases are Ohio v. Clark (June 18, 2015) interpreting the Confrontation Clause of the …

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

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

UF Law Faculty Publications

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 …

Reading Intellectual Property Law Reform Through The Lens Of Constitutional Equality, Jessica Silbey

Faculty Scholarship

In reviewing three books, Robert Spoo's Without Copyright, Bill Herman's The Fight for Digital Rights, and Aram Sinnreich's The Piracy Crusade, for Tulsa Law Review's annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights. This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

Vanderbilt Law Review

The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution's text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

The First Century Of Right To Arms Litigation, David B. Kopel

Sturm College of Law: Faculty Scholarship

This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law.

Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home …

"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.

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v. …

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Corporate Religious Liberty, Caroline Mala Corbin

Articles

No abstract provided.

Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein

Faculty Scholarship

In October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding …

The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …

The Most Scholarly Justices, Brian L. Frye

Law Faculty Scholarly Articles

Supreme Court justices both use and produce legal scholarship. This article identifies the ten most scholarly justices, based on both productivity and impact.

Constitutional Law In Social Choice Perspective, Maxwell Stearns

Maxwell L. Stearns

Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence implicitly rests on a set of assumptions that can best be cast in spatial terms. This includes assuming that debated positions respecting constitutional issues, along with the views of Supreme Court justices, rest along a common liberal-to-conservative ideological dimension. Political scientists who embrace the Attitudinal Model are more explicit in this framing, which is itself a premise of those who code the Supreme Court Database upon which much quantitative work in the field of Judicial Politics takes place.

The assumption of a single analytical dimension …

A Proposal For Improving Argument Before The United States Supreme Court, Louis Sirico

Louis J. Sirico Jr.

With rare exceptions, the U.S. Supreme Court allots thirty minutes to each side for oral argument. A review of transcripts and recordings of oral arguments confirms that the Court poses questions and makes comments with remarkable frequency. When students and lay people listen to the recordings, they may remark on the constant interruptions and view the Justices as rude interrogators. With the many questions that the Justices have and the limited time available, the advocates have little opportunity to present their arguments fully. The Justices may interrupt counsel with questions concerning the law or the relevant facts of a case. …

The Compromise Verdict: How The Court’S Resolution Of New Jersey V. Delaware Iii Implicitly Advanced Environmental Litigation, Joel M. Pratt

Joel M Pratt

New Jersey and Delaware have often fought over their territorial boundaries in the Delaware River. Three times, they have litigated cases in the Supreme Court under the Court’s original jurisdiction to hear cases or controversies between states. In 1905, a Compact negotiated by the states and confirmed by Congress settled the first case between the two states. The second case between the two states led the Supreme Court to issue a Decree confirming the boundaries of the two states. The third case, which began in 2005, asked the Court to decide the scope of each state’s power to regulate development …

Opening An Oral Argument Before The Supreme Court: The Decline Of Narrative's Role, Louis J. Sirico Jr.

Louis J. Sirico Jr.

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson