Law Commons^™

May 6, 2009: Judicial Pragmatism And Justice Souter's Replacement, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judicial Pragmatism and Justice Souter's Replacement“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 3, 2009: Justice Souter’S Replacement And The Future Of The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “Justice Souter’s Replacement and the Future of the Establishment Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 16, 2009: What Can The Courts Do About Gay Marriage?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Can the Courts Do About Gay Marriage?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 2, 2009: The Secular Mind On The Huffington Post, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Secular Mind on the Huffington Post“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Remaking The United States Supreme Court In The Courts' Of Appeals Image, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decision making, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decision making capacity but also improve the Court's composition, competence, and functioning.

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Scholarly Works

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …

March 22, 2009: A Restatement Of The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

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

March 16, 2009: Proposition 8 And The Threat Of, And To, Religious Liberty, Bruce Ledewitz

Hallowed Secularism

Blog post, “Proposition 8 and the Threat of, and to, Religious Liberty“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 1, 2009: Imagine The Court Being Helpful, Bruce Ledewitz

Hallowed Secularism

Blog post, “Imagine the Court Being Helpful“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 22, 2009: Rick Warren's Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “Rick Warren's Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 15, 2009: The Problem With Today's Church-State Jurisprudence, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Problem with Today's Church-State Jurisprudence“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 9, 2009: So Help Me God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So Help Me God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Death Penalty: How America’S Highest Court Is Narrowing Its Application, Adam S. Goldstone

American University Criminal Law Brief

No abstract provided.

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

Not Dead Yet: The Enduring Miranda Rule 25 Years After The Supreme Court’S October Term 1984, William F. Jung

Saint Louis University Public Law Review

No abstract provided.

The Supreme Court's Common Law Approach To Excessive Punitive Damage Awards: A Guide For The Development Of State Law, Victor E. Schwartz, Cary Silverman, Christopher E. Appel

South Carolina Law Review

No abstract provided.

A Pro-Employee Supreme Court?: The Retaliation Decisions, Michael J. Zimmer

South Carolina Law Review

No abstract provided.

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

UF Law Faculty Publications

The Supreme Court's unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird

Faculty Articles

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed …

Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch

Faculty Articles

In this Article, we examine the effect of judicial ideology on IP case outcomes before the Supreme Court from 1954 to 2006. We find that ideology is a significant determinant of IP cases: the more conservative a justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property. We also find evidence that the relationship is more complex than a purely ideological account would suggest; our results suggest that law matters too. We find that a number of factors that are specific to IP are also consequential. Additionally, we show …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren L. Hutchinson

Faculty Articles

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform liti­gation a judicial relic. Part II examines the historical development of in­stitutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post­-Brown era and contrasts those cases with Judge Sanders's rulings on the subject. In …

Competing Models Of Judicial Coalition Formation And Case Outcome Determination, Tonja Jacobi

Faculty Articles

Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures of judicial behavior on these results offer the potential to improve analysis of judicial decision-making.

This article formally explores three commonly posited modes of judicial decision-making: a minimum winning coalition model, representing attitudinalist views of judicial decision-making; a maximum winning coalition, capturing the effect of norms of joint …

Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher

Faculty Scholarship

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend …

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Book Review: The Forgotten Man: A New History Of The Great Depression, Barry Cushman

Journal Articles

Reviewing, The Forgotten Man: A New History of the Great Depression. By Amity Shlaes. (New York, N.Y.: Harper Collins Publishers, 2007. Pp. 461. $26.95.)

Using The Fourteenth Amendment To Protect The Integrity Of Kinship Foster Families, Jennifer Baum, Teresa J. Grogan

Faculty Publications

(Excerpt)

As children’s advocates, we know well the value of an extended family to a dependency case. Living with a family member is often considered by children removed from their parents to be the “second best.” Such arrangements are often more comforting, less socially stigmatizing, and more capable at facilitating children’s normal daily routines, including school, medical care, and religious training, than stranger foster care. The social and psychological benefits of kinship care are well documented. One recent retrospective study concluded that children in kinship foster care have fewer behavioral problems three years after placement than do children who were …

Queer Legal Victories: Intersectionality Revisited, Darren Rosenblum

Faculty Publications

(Excerpt)

In my 1995 article "Queer Intersectionality and the Failure of Lesbian and Gay ‘Victories,’” I merged queer and intersectionality theories to critique four lesbian and gay legal “victories.” I argued that queer identity intersected with other identity characteristics, yielding queer communities whose diverse needs reflect their various class, race, gender, and sex identifications. This intersectional perspective led me to view these decisions as victories for only a privileged subset of queer communities that, "but for" their gay or lesbian identity, conform to the "American dream" (De Lauretis 1991; Robson 1992). The United States' juridical heterosexism stifled the progressive potential …

A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation …

Supreme Neglect Of Text And History, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Supreme Neglect: How to Revive Constitutional Protection for Private Property by Richard A. Epstein (2008).

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the …

Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan

All Faculty Scholarship

As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive answer …