Law Commons^™

New Legal Rights In The Legal System Of The United States Of America, Roberto Rosas, Bill Piatt

Faculty Articles

Currently, there exist an extensive variety of individual rights recognized both nationally and internationally. With the course of time, however, they change; therefore, governments occasionally consider it necessary to create additional protections for their citizens. Generally, these propositions are made possible through the creation and approval of new rights. Even though these new rights are based on other previously established rights, they do offer society the opportunity to protect and defend itself as well as allowing it to continue making progress.

Only a few of the new legal rights that have been recognized within the last few years will be …

Massachusetts V Epa: Escaping The Common Law's Growing Shadow, Robert V. Percival

Faculty Scholarship

In its first full Term with its newest member, the U.S. Supreme Court marched decidedly to the right with decisions narrowing abortion rights, striking down affirmative action programs, invalidating campaign finance regulations, and making it more difficult for victims of employment discrimination to seek redress. In the face of this rightward shift the most surprising decision of the Term was the Court’s embrace of claims that the U.S. Environmental Protection Agency (EPA) had acted unlawfully by refusing to use the Clean Air Act to combat climate change. In Massachusetts v EPA, the Court held that EPA had the authority to …

The Sit-Ins And The Failed State Action Revolution, Christopher W. Schmidt

Studio for Law and Culture

This article revises the traditional account of why the Supreme Court, when faced in the early 1960s with a series of cases arising out of the lunch counter sit-in movement, refused to hold racial discrimination in public accommodations unconstitutional. These cases are the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in the sit-in cases. And they did so despite a transformation in popular opinion …

Super Medians, Lee Epstein, Tonja Jacobi

Faculty Articles

It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes”—those that are weightier or more entrenched than others—there are “super medians”—Justices so powerful that they are able to exercise significant control over the outcome and content of the Court’s decisions.

Conventional wisdom holds that Justices accumulate power by virtue of their personality, methodological approach, or even background characteristics. But our …

Returning Rico To Racketeers: Corporations Cannot Constitute An Associated-In-Fact Enterprise Under 18 U.S.C. § 1961(4), Caroline N. Mitchell, Jordan Cunningham, Mark R. Lentz

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria L. Ontiveros, Joshua R. Drexler

University of San Francisco Law Review

This Article highlights the economic and legal framework that has allowed a caste-like structure to be perpetuated where undocumented workers are exploited in order to do the work that economies demand, and to the extent that denial of education to the children of undocumented workers becomes part-and-parcel of this peculiar institution, the Thirteenth Amendment should prohibit it.

Business As Usual: The Roberts Court's Continued Neglect Of Adequacy And Equity Concerns In American Education, Osamudia R. James

Articles

No abstract provided.

The Fallacy Of Mandating Contraceptive Equity: Why Laws That Protect Women With Health Insurance Deepen Institutional Discrimination, Phyra M. Mccandless

University of San Francisco Law Review

This Comment takes a close look at the United States' approach to health insurance and various unsuccessful efforts at broadening the health care choices of American women in the form of contraceptive equity laws.

Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V.Michigan, Shenequa L. Grey

University of San Francisco Law Review

This Article examines other instances where the Supreme Court has historically held evidence inadmissible to determine whether such evidence should now be admissible in light of the Hudson v. Michigan analysis.

Ebay Rx, Tracy A. Thomas

Akron Law Faculty Publications

From a remedial perspective, the decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C reopened the age-old question of what it means to award equitable relief. In eBay, the Court rejected a permanent injunction issued by the U.S. Court of Appeals for the Federal Circuit to protect a business-method patent that defendant eBay had infringed on its successful auction website. This essay diagnoses the remedial problem in eBay as the improper use of presumptions for equitable relief that effectively prioritizes selected legal rights. It offers a prescriptive cure for the problem in the traditional balancing of the …

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos

Faculty Scholarship

The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …

Decline And Fall? The Roberts Court And The Challenges To Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold's soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In …

Remarks Of Gillian E. Metzger, Gillian E. Metzger

Faculty Scholarship

Thanks for having me, I'm glad to be here. I'm going to take for granted the principle that candor and transparency in judicial reasoning is a very good thing. The process of judicial decision making is a process of giving reasoned explanations, of holding up reasons and arguments for refutation. Whether adjudication turns mainly on such reason giving or instead on judicial policy preferences is of course a matter of some dispute, but I think it is relatively noncontentious to say that reason giving is both an important constituent of, and an important constraint on, the process of adjudication – …

Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor

University of Richmond Law Review

No abstract provided.

Constitutional Law And Values - Version '08 (Not Necessarily And Upgrade), Nadine Strossen

Articles & Chapters

No abstract provided.

Navigating The New Politics Of Judicial Appointments, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he …

The Conservative Case For Precedent, Thomas W. Merrill

Faculty Scholarship

This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally.

First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion – even in the law reviews – is animated by …

The Ada Amendments Act Of 2008, Chai R. Feldblum, Kevin Barry, Emily A. Benfer

Georgetown Law Faculty Publications and Other Works

The goal of the Americans with Disabilities Act (ADA) was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad …

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine

American Indian Law Review

No abstract provided.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Self-Execution And Treaty Duality, Curtis A. Bradley

Faculty Scholarship

The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the "supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are "self-executing." The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, …

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Scholarly Works

No abstract provided.

Imagining Gun Control In America: Understanding The Remainder Problem Article And Essay, Nicholas J. Johnson

Faculty Scholarship

Gun control in the United States generally has meant some type of supply regulation. Supply restrictions ranging from one-gun-a-month schemes to flat gun bans cannot work without a willingness and ability to reduce total inventory to levels approaching zero ("the supply-side ideal"). This is an impossible feat in a country that already has 300 million guns tightly held by people who think they are uniquely important tools. The average defiance ratio in places that have attempted gun confiscation and registration is 2.6 illegal guns for every legal one. In many countries defiance is far higher. None of those countries has …

Proportionality And The Supreme Court's Jurisprudence Of Remedies, Tracy A. Thomas

Akron Law Faculty Publications

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. …

Pro-Gun Scholars Twist Constitution, Kenneth Lasson

All Faculty Scholarship

Earlier this year, the Court of Appeals for the District of Columbia became the first federal tribunal to strike down a local gun-control law, holding that the Founding Fathers would have allowed all private citizens to arm themselves.

Electronic Data: A Commentary On The Law In Virginia In 2007, Hon. Thomas D. Horne

University of Richmond Law Review

No abstract provided.

Federal Campaign Finance Reform Based On Virginia Election Law, Rhodes B. Ritenour

University of Richmond Law Review

No abstract provided.

Decency, Dignity, And Desert: Restoring Ideals Of Humane Punishment To Constitutional Discourse, Eva Nilsen

Faculty Scholarship

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as …