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Articles 1981 - 2010 of 3331
Full-Text Articles in Law
Overvaluing Uniformity, Amanda Frost
Overvaluing Uniformity, Amanda Frost
Scholarly Articles in Law Reviews & Journals
"E NSURING the uniform interpretation of federal law has long been considered one of the federal courts' primary objectives, and uniformity is regularly cited in some of the most intractable debates about the structure and function of the federal court system. For example, specialized courts are lauded for their ability to ensure uniformity in the areas of law over which they have jurisdic- tion. Similarly, proponents of exclusive federal jurisdiction contend that the federal courts provide greater consistency in the interpre- tation of federal law than could fifty different state courts. Some commentators claim that Congress' power to create exceptions …
Judicial Independence: A Call For Reform, Terence J. Lau
Judicial Independence: A Call For Reform, Terence J. Lau
Nevada Law Journal
According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex Parte McCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.
Justiciable Generalized Grievances, Kimberly L. Wehle
Justiciable Generalized Grievances, Kimberly L. Wehle
All Faculty Scholarship
The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek …
Under-The-Table Overruling, Christopher J. Peters
Under-The-Table Overruling, Christopher J. Peters
All Faculty Scholarship
In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …
The Supreme Common Law Court Of The United States, Jack M. Beermann
The Supreme Common Law Court Of The United States, Jack M. Beermann
Faculty Scholarship
The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …
September 23, 2008: Excerpt From For The Establishment Of Religion, Bruce Ledewitz
September 23, 2008: Excerpt From For The Establishment Of Religion, Bruce Ledewitz
Hallowed Secularism
Blog post, “Excerpt from For the Establishment of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Book Review Of The Nine: Inside The Secret World Of The Supreme Court, Eric J. Segall
Book Review Of The Nine: Inside The Secret World Of The Supreme Court, Eric J. Segall
Journal of Legal Education
No abstract provided.
August 3, 2008: Is There A Common Core To Religion?, Bruce Ledewitz
August 3, 2008: Is There A Common Core To Religion?, Bruce Ledewitz
Hallowed Secularism
Blog post, “Is There a Common Core to Religion?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
U.S. Supreme Court Interviews On Effective Legal Writing – Part Iii, Robert S. Anderson
U.S. Supreme Court Interviews On Effective Legal Writing – Part Iii, Robert S. Anderson
Sturm College of Law: Faculty Scholarship
This column concludes a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. The justices discussed usage and grammar issues, as well as their own pet peeves as readers of legal writing.
July 6, 2008: For The Establishment Of Religion: Where Are We Now?, Bruce Ledewitz
July 6, 2008: For The Establishment Of Religion: Where Are We Now?, Bruce Ledewitz
Hallowed Secularism
Blog post, “For the Establishment of Religion: Where Are We Now?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
U.S. Supreme Court Interviews On Effective Legal Writing – Part Ii, Robert S. Anderson
U.S. Supreme Court Interviews On Effective Legal Writing – Part Ii, Robert S. Anderson
Sturm College of Law: Faculty Scholarship
This column continues a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. In addition to discussing the elements of effective legal writing, the justices talked about their own writing processes.
No Civilized System Of Justice, Book Review: The Day Freedom Died: The Colfax Massacre, The Supreme Court, And The Betrayal Of Reconstruction, Sonja R. West
Scholarly Works
A book review of The Day Freedom Died: The Colfax Massacre, The Supreme Court, and The Betrayal of Reconstruction by Charles Lane (Henry Holt 2008).
June 28, 2008: The Kennedy Court On Religion, Bruce Ledewitz
June 28, 2008: The Kennedy Court On Religion, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Kennedy Court on Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
U.S. Supreme Court Interviews On Effective Legal Writing – Part I, Robert S. Anderson
U.S. Supreme Court Interviews On Effective Legal Writing – Part I, Robert S. Anderson
Sturm College of Law: Faculty Scholarship
This column begins a three-part discussion of legal writing interviews given by eight of the nine sitting justices of the U.S. Supreme Court. This first part explores the two aspects of good legal writing that were the most often mentioned by the justices during their interviews: clarity and conciseness.
May 21, 2008: For The Establishment Of Religion, Bruce Ledewitz
May 21, 2008: For The Establishment Of Religion, Bruce Ledewitz
Hallowed Secularism
Blog post, “For the Establishment of Religion “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
The $62 Million Question: Is Virginia's New Center To House Sexually Violent Prisoners Money Well Spent?, Molly T. Geissenhainer
The $62 Million Question: Is Virginia's New Center To House Sexually Violent Prisoners Money Well Spent?, Molly T. Geissenhainer
University of Richmond Law Review
This comment examines Virginia's current civil commitment statute for sexual predators and attempts to identify areas where Virginia should concentrate its limited resources in order to address more adequately the ever-increasing problem of what to do with sex offenders. Part II briefly describes why sex offenders present law enforcement with unique problems in prevention and deterrence. Part III details the history of civil commitment legislation. Part IV examines Supreme Court of the United States jurisprudence regarding the constitutionality of sex offender civil commitment statutes. Part V examines the Virginia Sexually Violent Predator Act. Part VI briefly considers current violent sexual …
Dear President Bush: Leaving A Legacy On The Federal Bench, Carl Tobias
Dear President Bush: Leaving A Legacy On The Federal Bench, Carl Tobias
University of Richmond Law Review
No abstract provided.
Stoneridge V. Scientific-Atlanta: Do Section 10(B) And Rule 10b-5 Require A Misstatement Or Omission? (Pre-Publication Draft), Rodney D. Chrisman
Stoneridge V. Scientific-Atlanta: Do Section 10(B) And Rule 10b-5 Require A Misstatement Or Omission? (Pre-Publication Draft), Rodney D. Chrisman
Faculty Publications and Presentations
This version is a draft submitted for publication and accepted prior to the Supreme Court’s ruling. The final version, published by QLR and also posted on Digital Commons, was modified subsequently to the Supreme Court ruling. Stoneridge v. Scientific-Atlanta promises to be the most important securities litigation case to reach the Supreme Court since Central Bank of Denver. In this important case, Stoneridge presents the Supreme Court with the opportunity to clarify the application of its ruling in Central Bank to liability for secondary actors under section 10(b) and rule 10b-5. This Article points out that the fundamental question plaguing …
Standing In The Way Of Clarity: Hein V. Freedom From Religion Foundation, Inc., Mark Wankum
Standing In The Way Of Clarity: Hein V. Freedom From Religion Foundation, Inc., Mark Wankum
University of Arkansas at Little Rock Law Review
This article deals with the often misunderstood and maligned issue of taxpayer standing. It seeks to explore the Court's standing jurisprudence as it has evolved from "cases and controversies" to a modern constitutional doctrine. The article begins with a discussion of the Framers' judiciary and the development of a modern standing doctrine. It then turns to the area of taxpayer and citizen suits, exploring the judicial landmarks and landmines from Frothigham v. Mellon to Flast. Next, applications and limitations of the Flast test during the Burger, Rehnquist, and early Roberts Courts are explored, before turning to the most recent decision …
Does The Supreme Court Still Matter?, Timothy B. Dyk
Does The Supreme Court Still Matter?, Timothy B. Dyk
American University Law Review
No abstract provided.
Will The United States Follow England (And The Rest Of The World) In Abandoning Capital Punishment?, Frederick C. Millett
Will The United States Follow England (And The Rest Of The World) In Abandoning Capital Punishment?, Frederick C. Millett
The University of New Hampshire Law Review
[Excerpt] “Walking down Nanjing Road in Shanghai, you will not only pass by the foreign clothing stores that seem to be taking over the area, but also Pepsi signs every fifty feet, a McDonald’s, and a KFC—all with the backdrop of Chinese characters and the Oriental Pearl TV Tower. Along your way, you can stop in The Chopstick Shop to find the perfect set of chopsticks, buy a smoothie from a vendor, or just sit on a bench and watch the thousands of Chinese people walk by wearing Nike hats and Levi’s jeans. Just across the river is the Pudong …
Born In The U.S.A.? Rethinking Birthright Citizenship In The Wake Of 9/11, John C. Eastman
Born In The U.S.A.? Rethinking Birthright Citizenship In The Wake Of 9/11, John C. Eastman
University of Richmond Law Review
No abstract provided.
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
All Faculty Scholarship
Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …
If Major Wars Affect (Judicial) Fiscal Policy, How & Why?, Nancy Staudt
If Major Wars Affect (Judicial) Fiscal Policy, How & Why?, Nancy Staudt
Faculty Working Papers
This paper seeks to identify and explain the effects of major wars on U.S. Supreme Court decision-making in the context of taxation. At first cut, one might ask why we should even expect to observe a correlation between military activities and judicial fiscal policy. After all, the justices have no authority whatsoever to adopt funding laws intended to relieve the budgetary pressures that tend to emerge in times international crisis. The Court, however, is able to contribute to the wartime revenueraising efforts indirectly by adopting a pro-government stance in the cases it decides in wartime periods. As the probability of …
Death By A Thousand Cuts Or Hard Bargaining?: How The Supreme Court's Indecision In Wilkie V. Robbins Improperly Eviscerates The Bivens Action, Natalie Banta
Law Faculty Publications
No abstract provided.
Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns
Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns
Faculty Scholarship
After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O’Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O’Connor was generally viewed as occupying the Court’s centrist, or median, position, Alito has instead continued to embrace …
Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin
Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathon L. Entin
Seattle University Law Review
This Article examines some of the jurisprudential roots of the racial discrimination debate, tracing the issue back to Brown and its immediate aftermath but finding the seeds of the disagreement in the ambiguities of the first Justice Harlan's celebrated dissenting opinion in Plessy v. Ferguson. The tensions between the two approaches did not matter in Plessy because segregation was impermissible under either theory, but the two approaches pointed in opposite directions in Parents Involved. Part II offers an overview of the Seattle and Louisville policies that were struck down in Parents Involved. Part III examines the various …
Solving The Parents Involved Paradox, Lino A. Graglia
Solving The Parents Involved Paradox, Lino A. Graglia
Seattle University Law Review
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …
Raising The Dead: How The Ninth Circuit Avoided The Supreme Court's Guidelines Concerning Aesthetic Functionality And Still Got Away With It In Au-Tomotive Gold, Yevgeniy Markov
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Out On A Limb Without Direction: How The Second Circuit’S Decision In Fox V. Fcc Failed To Adequately Address Broadcast Indecency And Why The Supreme Court Must Correct The Confusion, Andrew Smith
Saint Louis University Public Law Review
No abstract provided.