Law Commons^™

Obamacare's (3) Day(S) In Court, Abigail Moncrieff

Faculty Scholarship

Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …

Business Interests And The Long Arm In 2011, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Airspace And The Takings Clause, Troy A. Rule

Faculty Publications

This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Scholarly Works

No abstract provided.

Airspace And The Takings Clause, Troy A. Rule

Faculty Publications

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Northwestern Journal of Law & Social Policy

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

The Dialectic Of Obscenity, Brian L. Frye

Law Faculty Scholarly Articles

Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.

So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.

But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …

Justice Breyer's Triumph In The Third Battle Over The Second Amendment, Allen K. Rostron

Faculty Works

In recent years, the Supreme Court has issued two landmark decisions about the constitutional right to keep and bear arms. District of Columbia v. Heller rejected the notion that the Second Amendment protects only organized militia activities, and McDonald v. City of Chicago found that the right to keep and bear arms applies to state and local governments via incorporation into the Fourteenth Amendment. Those decisions left important questions unanswered. In particular, the Supreme Court declined to specify what level of scrutiny or test should be used to assess the validity of gun laws. Lower courts are now wrestling with …

The Federal Judicial Vacancy Crisis: Origins And Solutions, Ryan Shaffer

CMC Senior Theses

This paper examines the causes of the rise in vacancies on the federal courts in recent decades. Under President Barack Obama, the number of vacancies on the federal courts has sharply jumped. This is due to firm opposition by Senate Republicans, who have used the various procedural tools of that body to make it difficult for nominees to get confirmation. This antagonism is the result of a shift in how the parties view the courts and their role in the American political process. The Warren Court's expansion of substantive due process rights increased the Court's powers to the chagrin of …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To Section 5000a Of The Tax Code, Kevin C. Walsh

Law Faculty Publications

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

There is a puzzle surrounding the Supreme Court's consideration of these cases. Everyone seems to want an answer to the question …

Judulang V. Holder And The Future Of 212(C) Relief, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, a case addressing the Board of Immigration Appeals’ use of the comparable grounds approach for determining eligibility for relief under former section 212(c) of the Immigration and Nationality Act. The Court held that this approach was arbitrary and capricious under the Administrative Procedure Act, and remanded for the agency to determine a new way for determining the eligibility of deportable aliens for 212(c) relief. The purpose of this article is to place the Court’s decision in its proper historical context and to chart the …

What Were They Thinking? Insider Trading And The Scienter Requirement, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

On its face, the connection between insider trading regulation and the state of mind of the trader or tipper seems intuitive. Insider trading is a form of market abuse: taking advantage of a secret to which one is not entitled, generally in breach of some kind of fiduciary-like duty. This chapter examines both the legal doctrine and the psychology associated with this pursuit. There is much conceptual confusion in how we define unlawful insider trading—the quixotic effort to build a coherent theory of insider trading by reference to the law of fraud, rather than a more expansive market abuse standard—which …

Alien Tort Claims And The Status Of Customary International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

Gaylord V. United States, Jeffrey Lawhorn

NYLS Law Review

No abstract provided.

United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas

Journal of Dispute Resolution

This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Akron Law Faculty Publications

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act

The Future Interpretation Of The Constitution As A Result Of The Re-Election Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Consensus, Disorder, And Ideology On The Supreme Court, Stefanie A. Lindquist, Paul H. Edelman, David E. Klein

Scholarship@WashULaw

Ideological models are widely accepted as the basis for many academic studies of the Supreme Court because of their power in predicting the justices' decision-making behavior. Not all votes are easily explained or well predicted by attitudes, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to ideological accounts of judicial decision making. Are consensus and (ultimately) unanimity driven by extreme factual scenarios or extreme lower court rulings such that even the most liberal and most conservative justice can agree on the case disposition? Or are they driven by other, …

Supreme Court Prequel: Justice Stevens On The Seventh Circuit Symposium, Stefanie A. Lindquist

Scholarship@WashULaw

Justice Stevens’s retirement from the U.S. Supreme Court has occasioned numerous retrospectives on his lengthy career as a Supreme Court Justice. Yet Justice Stevens’s career began on the Seventh Circuit and his voting behavior and doctrinal positions on the circuit court provide a unique window into his judicial character and the roots of his thinking on important issues that continued to preoccupy him on the Supreme Court. In this Essay, I first analyze then-Judge Stevens’s voting behavior on the court of appeals by examining the frequency with which he wrote separate opinions, as well as his voting interagreement with his …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia W. Moore

Faculty Articles

The effect of Ashcroft v. Iqbal on pleading standards and behavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data …

Constitutionalizing Anarchy: Liberalism, Lynching, And The Law, Daniel Kato

Journal of Hate Studies

Overall review of Supreme Court cases regarding racial violence suggests that while the Court did rule in favor of acquitting lynchers of federal prosecution, it did not completely strip all authority for federal rights enforcement. This essay reassesses the Supreme Court’s handling of racial violence and formulates a theory of law that can account for how lynchings could exist as a tacitly accepted practice without being explicitly sanctioned by the law. Rather than cracking down on lynchers and/or the states that failed to deal with lynchers, the Supreme Court decided to create “zones” wherein questionable activities like lynchings could occur …

Territory, Wilderness, Property, And Reservation: Land And Religion In Native American Supreme Court Cases, Kathleen Sands

American Indian Law Review

In two trilogies of Supreme Court Decisions, both involving Native Americans, land is a key metaphor, figuring variously as property, territory, wilderness, and reservation. The first trilogy, written by Chief Justice John Marshall, comprises Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). The second trilogy concerns Native American claims for religious freedom under the First Amendment and includes Bowen v. Roy (1986), Lyng v. Northwest Cemetery Protective Association (1988), and Employment Division of Oregon v. Smith (1990). The Marshal cases attempted to legitimate the transformation of land from wilderness to territory and property, and …

Aclu Seeks Supreme Court Review In Windsor Doma Suit, Arthur S. Leonard

Other Publications

No abstract provided.