Law Commons^™

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

The Use And Abuse Of Social Science In The Same-Sex Marriage Debate, Stephen A. Newman

NYLS Law Review

No abstract provided.

Innocence And The Sopranos, Seth D. Harris

NYLS Law Review

No abstract provided.

The Supreme Court, Democracy And Institutional Reform Litigation, Ross Sandler, David Schoenbrod

NYLS Law Review

No abstract provided.

Using The Master’S “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, Angela Onwuachi-Willig

Faculty Scholarship

Justice Clarence Thomas, the second black man to sit on the Supreme Court, is famous, or rather infamous, for his opposition to affirmative action. His strongest critics condemn him for attacking the very preferences that helped him reach the Supreme Court. None, however, have considered how Thomas's life itself may be used as a justification for affirmative action. In what ways can the master's "tool" be used to dismantle his house? This Article analyzes Justice Thomas's appointment to the Supreme Court and contends that his nomination to and performance on the Court ironically make the case for forward-looking affirmative action. …

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witness, Robert P. Mosteller

University of Richmond Law Review

No abstract provided.

The Supreme Court And Voting Rights: A More Complete Exit Strategy, Grant M. Hayden

Faculty Journal Articles and Book Chapters

To the great relief of many observers, the Supreme Court has recently become more deferential to state legislatures with respect to their political redistricting plans. The only problem is that the Court appears to be in no mood to revisit some of the cases that got it entangled in the political thicket to begin with - the ones rigorously applying the one person, one vote standard. Indeed, it recently issued a summary affirmance of a lower court decision that tightened up its already exacting standards regarding population equality. As a result, the Court's partial retreat from politics is doing more …

Looking Ahead: October Term 2006, Peter B. Rutledge

Scholarly Works

October Term 2006 will be the first full opportunity for Court-watchers to assess the impact of recent changes in the Court's membership. It will be Chief Justice Roberts' second full term and Justice Alito's first. It also will provide the first full term in which to assess whether Justice Kennedy will reclaim his role as "swing justice." Accompanying these changes in the Court's personnel will be a docket full of interesting cases on topics such as the constitutionality of racial diversity programs, abortion, environmental law, punitive damages, and criminal procedure. Consistent with prior contributions to this series, this essay offers …

The Irrational Supreme Court, Michael I. Meyerson

All Faculty Scholarship

Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Dignity In Race Jurisprudence, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown …

When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance

Scholarly Works

This Article examines the application of section 43(a) of the Lanham Act to claims of reverse passing off through the lens of the Supreme Court's unpersuasive effort in Dastar Corp. v. Twentieth Century Fox Film Corp. to exclude a single class of reverse passing off-claims - those involving “expressive” works as opposed to physical commodities - from the scope of section 43(a). The Article critiques the Court's analysis of section 43(a) in light of case law and the pertinent legislative history, including, the Trademark Law Revision Act of 1988, the Berne Convention Implementation Act of 1988, and the Visual Artists …

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Anatomy Of An Oral Argument, Rodney A. Smolla

Law Faculty Publications

No abstract provided.

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear

Faculty Scholarship

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Discussion: A Focus On Federalism, Jeffrey B. Morris

Scholarly Works

No abstract provided.

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

Altmann V. Austria And The Retroactivity Of The Foreign Sovereign Immunities Act, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Republic of Austria v. Altmann, the U.S. Supreme Court decided that the Foreign Sovereign Immunities Act of 1976 (FSIA) generally applies to claims based on events that occurred before the Statute's enactment. To decide the retroactivity question, the Court had occasion to consider the essential nature of foreign sovereign immunity: is it merely a procedural immunity providing foreign states with present protection from the inconvenience and indignity of a lawsuit, or is it something more than that? The Court's examination of this question was brief and unsatisfying. Its analysis would have been enriched by a recognition that foreign …

Neutralizing Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court's abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses …

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Touro Law Review

No abstract provided.

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Scholarly Works

No abstract provided.

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

Scholarly Works

Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits similar to …

Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner

University of Richmond Law Review

No abstract provided.

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.

The Doctrine Of Deference: Shifting Constitutional Presumptions And The Supreme Court's Restatement Of Student Rights, Bernard James, Joanne E.K. Larson

South Carolina Law Review

No abstract provided.

Re-Mapping Equal Protection Jurisprudence: A Legal Geography Of Race And Affirmative Action,, Reginald Oh

Law Faculty Articles and Essays

Oh argues that when the United States Supreme Court decided Richmond v. Croson in 1989 and imposed strict scrutiny on state and local government affirmative action programs, it marked a critical moment and turning point in the evolution and development of public and legal discourse on race, racism, and race relations in America. Although many scholars have critically examined the Croson opinion, curiously, scholars have yet to recognize its full ramifications and implications. Aside from the technical doctrinal changes made to equal protection law, the Croson decision is also important because of the way the Court produced and mapped a …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Oh discusses how the U.S. Supreme Court, in General Dynamics Land Systems, Inc. v. Cline, 124 S. Ct. 1236 (2004), settled a circuit court conflict over the viability of "reverse age discriminations" claim under the Age Discrimination in Employment Act (ADEA). The Court, in a 6-3 decision, held that statutorily protected workers over the age of forty may not bring an ADEA claim alleging that their employer discriminated against them in favor of older employees.

Supreme Court Statistical Overview, October Term 2003, Georgetown University Law Center, Supreme Court Institute, Liz Hollander

Supreme Court Overviews

No abstract provided.