Law Commons^™

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. …

On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Scholarly Works

No abstract provided.

Interring The Rhetoric Of Judicial Activism, Neil S. Siegel

Faculty Scholarship

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs.

In this Article, I examine these two ways …

Resisting Federal Courts On Tribal Jurisdiction, Matthew L.M. Fletcher

University of Colorado Law Review

This Paper is part of a call for a paradigm-shifting reexamination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian country in the twenty-first century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second …

The Law Clerk Proxy Wars: Secrecy, Accountability, And Ideology In The Supreme Court, Carolyn Shapiro

All Faculty Scholarship

This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in …

Supreme Court Of The United States, October Term 2009 Preview, Update: October 26, 2009, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

October 16, 2009: Higher Law In The Public Square Meets The High School Cheerleader, Bruce Ledewitz

Hallowed Secularism

Blog post, “Higher Law in the Public Square Meets the High School Cheerleader“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 12, 2009: Steve Waldman Doesn't Get The Cross, Bruce Ledewitz

Hallowed Secularism

Blog post, “Steve Waldman Doesn't Get the Cross“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 7, 2009: The Temptations Of Standing, Bruce Ledewitz

Hallowed Secularism

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

October 2, 2009: Higher Law In The Public Square, Bruce Ledewitz

Hallowed Secularism

Blog post, “Higher Law in the Public Square“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand

Scholarly Works

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

September 9, 2009: How Did Corporations Get Constitutional Rights?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How Did Corporations Get Constitutional Rights?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Supreme Court Of The United States, October Term 2009 Preview, Georgetown University Law Center, Supreme Court Institute, Amanda M. Boote

Supreme Court Overviews

No abstract provided.

The Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, Carolyn Shapiro

All Faculty Scholarship

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices’ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even …

August 4, 2009: Posting The Declaration Of Independence In Public School Classrooms, Bruce Ledewitz

Hallowed Secularism

Blog post, “Posting the Declaration of Independence in Public School Classrooms“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 30, 2009: Jesus Is Back In The Legislature, Thank God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Jesus is Back in the Legislature, Thank God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 19, 2009: Getting Jesus Out Of The Legislature, Bruce Ledewitz

Hallowed Secularism

Blog post, “Getting Jesus Out of the Legislature“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 9, 2009: How Is The Constitution Interpreted?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How is the Constitution Interpreted?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

May 27, 2009: Judge Sonia Sotomayor And Judicial Activism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judge Sonia Sotomayor and Judicial Activism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Obama's Second Chance To Make History, José F. Anderson

All Faculty Scholarship

This short article provides a view of the circumstances and issues surrounding President Obama's nomination of federal circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

With President Barack Obama's nomination of federal circuit Judge Sonia Sotomayor to the Supreme Court, his judicial appointment team has been presented with an early introduction to what has become one the most challenging areas of presidential governance over the last several decades.

The nominations to the nation's highest court have generated controversies going back to Ronald Reagan's failed attempt to elevate the highly controversial federal Judge Robert Bork to the court in the …

May 24, 2009: President Barack Obama’S Criteria For Justice Of The Supreme Court, Bruce Ledewitz

Hallowed Secularism

Blog post, “ President Barack Obama’s Criteria for Justice of the Supreme Court“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 21, 2009: Tom Krattenmaker On The Rights Of Religious Students At High School Graduations, Bruce Ledewitz

Hallowed Secularism

Blog post, “Tom Krattenmaker on the Rights of Religious Students at High School Graduations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Wyeth V. Levine And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s decision in Wyeth v. Levine sharply limited the availability of implied preemption as a defense in pharmaceutical cases. In this Analysis & Perspective, attorney Brian Wolfman discusses the decision and its implications for prescription drug litigation as well as litigation in other areas that are regulated by the federal government.

After Wyeth, Wolfman says, a defendant in a prescription drug case must demonstrate a ‘‘tight fit between the labeling change proposed by the manufacturer (and rejected by the FDA) and the labeling change that the plaintiff contends would have prevented her injuries.’’ Moreover, he says, …