Law Commons^™

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Faculty Scholarship

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …

Separation Of Powers And The Middle Way, Jack M. Beermann

Shorter Faculty Works

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding …

November 2, 2011: The Establishment Clause In Shambles, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Establishment Clause in Shambles“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering - October 2009 Term, Richard Klein

Touro Law Review

No abstract provided.

Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers - October 2009 Term, Michael C. Dorf, Erwin Chemerinsky

Touro Law Review

No abstract provided.

First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael C. Dorf

Touro Law Review

No abstract provided.

October 9, 2011: Why Does There Need To Be A Ministerial Exception?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Does There Need to be a Ministerial Exception?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

Faculty Publications

Chief Justice William H. Rehnquist called Lochner v. New York (1905) “one of the most ill-starred decisions that [the Supreme Court ever rendered.” The Justices’ deliberations preceding the 5-4 decision demonstrate the courts’ reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state’s “incredibly sketchy” brief and Joseph Lochner’s sterling submission may have determined Lochner’s outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York’s maximum-hours law for bakery workers was a reasonable public health …

Reconciling Chevron, Mead, And The Review Of Agency Discretion: Source Of Law And The Standards Of Judicial Review, Michael P. Healy

Law Faculty Scholarly Articles

Although the Supreme Court's watershed decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. has been understood by many as defining the framework for judicial review of agency legal determinations, there have been longstanding questions about the application of the standards for reviewing administrative action. These questions have become more troublesome following the Supreme Court's 2001 decision in United States v. Mead Corp. Mead established that Chevron review only applies when defined requirements are met and held that so-called Skidmore deference applies when Chevron deference does not apply. Surveying the aftermath of Mead and its effect on the …

Polls, The Public, And Popular Perspectives On Constitutional Issues, Bruce G. Peabody, Peter J. Woolley

Res Gestae

No abstract provided.

Supreme Court Of The United States, October Term 2011 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Infinite Hope And Finite Disappointment: The Story Of The First Interpreters Of The Fourteenth Amendment, Elizabeth Reilly

University of Akron Press Publications

Infinite Hope and Finite Disappointment details the aspirations and promises of the 14th Amendment in the historical, legal, and sociological context within which it was framed. Part of the Reconstruction Amendments collectively known as "The Second Founding," the 14th Amendment fundamentally altered the 1787 Constitution to protect individual rights and altered the balance of power between the national government and the states. The book also shows how initial Supreme Court interpretations of the Amendment's reach hindered its applicability. Finally, the contributors investigate the current impact of the 14th Amendment.

Contents Infinite Hope: The Framers as First Interpreters The Antebellum Political …

Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.

Schneckloth V. Bustamonte: History’S Unspoken Fourth Amendment Anomaly, Brian Gallini

School of Law Faculty Publications and Presentations

The officer walking the beat has numerous tools at her disposal to effectuate a warrantless search, the most popular of which is the consent search. Academics, courts, and the public appear skeptical of current consent search practices; so, how did we get here? Step back to 1969 when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice of the Supreme Court. At that time, many believed Burger’s “law and order” background foretold Miranda’s overruling. That never happened; a handful of commentators and historians therefore view the Burger Court’s criminal procedure decisions as anticlimactic. That view overlooks the …

July 2, 2011: What Did I Learn From The Huffington Post Piece?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Did I Learn From the Huffington Post Piece?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Snyder V. Phelps: The Destruction Of The Equilibrium Between The Right To Free Speech And The Right To Protection From It, Stewart Berkeley

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Snyder V. Phelps: Finding The Light At The End Of The Tort, Brendan Mackesey

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Snyder V. Phelps: The Demise Of Constitutional Avoidance, Emily Horowitz

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

June 26, 2011: The Political Irresponsibility Of Douglas Laycock, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Political Irresponsibility of Douglas Laycock“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 15, 2011: Weird Second Circuit Decision, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Weird Second Circuit Decision“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 8, 2011: Torture Works, Bruce Ledewitz

Hallowed Secularism

Blog post, “Torture Works“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Role Of Law: How Law Shapes And Alters The Foundations Of Societies, Derek Robert Funk

Undergraduate Honors Capstone Projects

When one considers the abundant number of nations, laws, and forms of government that have emerged throughout the history of civilization, it becomes apparent that although mankind shares common traits and attributes, societies often implement different principles as they strive to protect their interests and achieve their goals. As the philosopher Jean-Jacques Rousseau remarked, “besides the principles that are common to all, every nation has in itself something that gives them a particular application, and makes its legislation peculiarly its own.”1 Because every society faces a unique set of challenges, every society must solve its particular dilemmas in a unique …

Israel's Supreme Court Appellate Jurisdiction: An Empirical Study, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

This Essay reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 3,562 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory-jurisdiction cases ending with clear affirmances or reversals, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary- jurisdiction cases, the ISC rarely granted review. It agreed to review about 6 % of petitions …

April 3, 2011: The Legal Background Of Burning The Qur’An, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Legal Background of Burning the Qur’an“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

The Supreme Court rarely grants certiorari in a veterans benefits case. Congress gave the Federal Circuit exclusive jurisdiction over veterans appeals in 1988 but, until 2009, the Supreme Court had reviewed only two Federal Circuit veterans decisions. In the 2010 Term, however, the Court decided its second veterans case in less than two years. Although patent lawyers are familiar with a trend of increasing Supreme Court interest in the Federal Circuit’s work, little attention has been paid to the similar, albeit incipient, trend that may be emerging in the field of veterans law.

In this contribution to the annual Federal …

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

Scholarly Works

No abstract provided.

Punitive Damages Vs. The Death Penalty: In Search Of A Unified Approach To Jury Discretion And Due Process Of Law, José F. Anderson

All Faculty Scholarship

The role of the jury in awarding monetary damages to plaintiffs in a wide range of civil cases has captured the attention of the media, contemporary non-fiction writers, and reform-minded politicians in recent years. Particular attention has been focused on huge jury awards, which has led many commentators to criticize the wisdom of permitting juries to move so much money from one place to another. Although the right to a jury trial, and with it the exercise of broad judicial discretion, is constitutionally based, many reform efforts have moved toward removing juries from cases both as to the subject matter …

Courts, Social Change, And Political Backlash, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On March 31, 2011, Professor of Law, Michael Klarman of Harvard Law School delivered the Georgetown Law Center’s thirty-first annual Philip A. Hart Lecture: “Courts, Social Change, and Political Backlash.” Included here are the speaker's notes from this lecture.

Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School. Formerly, he was the James Monroe Distinguished Professor of Law, Professor of History, and the Elizabeth D. and Richard A. Merrill Research Professor at the University of Virginia School of Law. Klarman specializes in the constitutional history of race.

Klarman holds a J.D. from Stanford Law School, a D.Phil. …

India And Pakistan: A Tale Of Judicial Appointments, Shubhankar Dam

Research Collection Yong Pung How School Of Law

Recent judicial appointments in India and Pakistan have led to battles between their respective judicial and executive branches. In a moment of remarkable constitutional coincidence, two appointments were set aside in India and Pakistan last week. First, India's Supreme Court invalidated the appointment of P. J. Thomas to the Central Vigilance Commission (CVC). Days later, Pakistan's Supreme Court invalidated Deedar Shah's appointment to the National Accountability Bureau (NAB).