Law Commons^™

Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald

ExpressO

No abstract provided.

Military Detention And The Judiciary: Al Qaeda, The Kkk And Supra-State Law, Wayne Mccormack

San Diego International Law Journal

This Article touches on the choice of whether to use the language and tools of war or the language and tools of law enforcement in responding to terrorism. The principal focus, however, is on the limited issue of judicial review and military detentions. The Article reviews the case law created on this subject during the Civil War and World War II. Historical considerations are found by the author to be relevant and helpful in solving the incoherency of current legal responses to terrorism. For instance, indefinite military detention is not coherent with either the international law concept of violations of …

Right Wing Justice: The Conservative Campaign To Take Over The Courts, Herman Schwartz

Books

Right Wing Justice raises the alarm about the creeping conservative campaign to "pack" America's courts with judges more identified with their ideological affiliation than their skill or regard for the Constitution. The consequence is that the rule of law is taking a terrific beating from the Supreme Court. Who can forget the debacle of Election 2000? But the consequences of the campaign go far deeper than that, impinging on the daily lives of ordinary Americans who are at the receiving end of attempts to overturn or erode Supreme Court rulings on abortion, school prayer, civil rights, criminal justice, and economic …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.

The Irrelevance Of Sincerity: Deliberative Democracy In The Supreme Court, John M. Kang

Saint Louis University Law Journal

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton

All Faculty Scholarship

No abstract provided.

Can Treasury Overrule The Supreme Court?, Gregg D. Polsky

Scholarly Works

This article considers whether the Treasury's check-the-box regulations, which have been widely praised by tax practitioners, are valid. These regulations generally allow any unincorporated entity to elect whether it will be treated as a corporation or a partnership for tax purposes. When these regulations were first proposed, there was some debate as to whether such an elective regime was foreclosed by the statutory scheme, which requires that "associations" be taxed as corporations. This article argues that the focus of this debate was misplaced because, even assuming that the statutory scheme itself was sufficiently ambiguous as to permit an elective regime, …

Justice Sandra Day O'Connor: The World's Most Powerful Jurist?, Diane Lowenthal, Barbara Palmer

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic value, do …

Law, Politics, And Judicial Review: A Comment On Hasen, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Law Of Typicality: Examining The Procedural Due Process Implications Of Sandin V. Conner, Donna H. Lee

Fordham Law Review

Although the Due Process Clause of the Fourteenth Amendment has long protected against deprivations that implicate state-created liberty interests as well as core constitutional concerns, the Supreme Court changed course in liberty interest jurisprudence in Sandin v. Conner. It retreated from a positivist approach and articulated a new test for determining when a prisoner's claim warrants procedural due process. The Court held that the challenged action must impose an "atypical and significant" hardship, but provided little guidance on how to measure typicality and significance. This Article proposes a methodology for examining typicality that is grounded in empirical evidence and advocates …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the Supreme Court decision Lawrence v. Texas, 123 S. Ct. 24 72 (2003). Writing for the majority, Justice Anthony Kennedy held that the Texas anti-sodomy statute, by criminalizing adult consensual sexual conduct, violated the petitioners' vital interests in liberty and privacy as protected by the substantive due process doctrine under the Fourteenth Amendment.

Brief For The Respondent, Commissioner Of Internal Revenue V. Banks, 543 U.S. 426 (Supreme Court Of The United States 2004) (No. 03-892), Glenn P. Schwartz

Court Documents and Proposed Legislation

No abstract provided.

Torture, Marcy Strauss

NYLS Law Review

No abstract provided.

What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard

Fordham Urban Law Journal

This article explores the ways in which the court's recognition of a broad zone of personal liberty in Lawrence v. Texas may serve to strengthen a woman's constitutionally protected reproductive rights in future Supreme Court decisions. Part of the author's analysis focuses on using particular Justices' opinions (and dissents) to predict the direction of future challenges to abortion rights in front of the Supreme Court.

Retooling The Intent Requirement Under The Fourteenth Amendment, Henry L. Chambers, Jr.

Law Faculty Publications

Racial classifications carry the largest taint and require the most justification. Strict scrutiny-the level of scrutiny with which the remainder of the article will be concerned-requires that race-based differentiation serve a compelling state interest and be narrowly tailored to serve that interest, guaranteeing that the reason for the differentiation is extremely important and that the link between the means chosen to meet the ends is extremely tight. Though strict scrutiny is difficult to survive, it is triggered only when a state actor engages in intentional or purposeful racial discrimination. Controversy surrounds whether such a trigger is necessary. However, rather than …

Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles

Faculty Scholarship

In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that the classifications based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the …

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

Preemption Of State Tort Law By Federal Safety Statutes: Supreme Court Preemption Jurisprudence Since Cipollone, Richard C. Ausness

Law Faculty Scholarly Articles

This article shall attempt to trace the twists and turns of Supreme Court preemption jurisprudence. Part I provides a brief overview of federal preemption law, considering the constitutional sources of preemption and the traditional preemption categories. Part II analyzes Cipollone v. Liggett Group, Inc., the source of modem Supreme Court doctrine regarding preemption of state tort law by federal safety legislation. Part III reviews seven post-Cipollone Supreme Court preemption cases: CSX Transportation, Inc. v. Easterwood, Freightliner Corp. v. Myrick, Medtronic, Inc. v. Lohr, Norfolk Southern Railway Co. v. Shanklin, Geier v. American Honda Motor …

Putting The Supreme Court Back In Place: Ideology, Yes; Agenda, No, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

This essay is about the permanent damage to the Supreme Court and to the country that may occur if the current approach to judicial appointments continues, and offers an approach to the nomination and confirmation of Supreme Court justices that will help put the Court back in its proper place - out of the eye of the elective political storm.

Illinois Brick: A Look Back And A Look Ahead, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In June 1977, the United States Supreme Court decided Illinois Brick Co. v. Illinois, ruling that only those dealing directly with price-fixers, and not others in the chain of distribution, are "injured" within the meaning of Section 4 of the Clayton Act in price-fixing cases. The decision struck the death knell to claims by indirect purchasers that illegal overcharges incurred by first purchasers had been passed-on to them through the distribution chain. The so-called direct purchaser rule of Illinois Brick was clear and unequivocal, the very essence of a bright-line rule. Yet, after over a quarter century, the …

Demythologizing The Legal History Of The Jehovah’S Witnesses And The First Amendment, Allen K. Rostron

Faculty Works

In 2002, for the first time in more than 20 years, the Supreme Court of the United States decided a case involving the First Amendment rights of Jehovah's Witnesses. The Court ruled that Witnesses cannot be required to give their names to local government authorities in order to obtain permits before going door-to-door to distribute their publications and preach their religious message.

While the amount of new law being generated by the religion's followers has slowed, scholars have finally begun in recent years to give significant attention to the legal history of the Jehovah's Witnesses, and, in particular, to their …

Committee To Evaluate Judicial Conduct And Disability Act, Carl Tobias

Law Faculty Publications

In late May, Chief.Justice William H. Rehnquist appointed the Judicial Conduct and Disability Act Study Committee to analyze how the federal judicial system has implemented the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 351-54). That legislation authorizes anyone to file a complaint alleging that a federal appellate, district, magistrate, or bankruptcy judge has "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or is mentally or physically unable to perform the judicial officer's duties. The statute neither prescribes ethical standards nor applies to the United States …

The Jose Padilla Story, Donna R. Newman

NYLS Law Review

No abstract provided.

The Torture Warrant: A Response To Professor Strauss, Alan M. Dershowitz

NYLS Law Review

No abstract provided.

Investigating New York’S Son Of Sam Law: Problems With The Recent Extension Of Tort Liability For People Convicted Of Crimes, Jessica Yager

NYLS Law Review

No abstract provided.

Five Critical Issues In New York’S Grandparent Visitation Law After Troxel V. Granville, Stephen A. Newman

NYLS Law Review

No abstract provided.

Homophobia And The “Matthew Shepard Effect” In Lawrence V. Texas, Kris Franklin

NYLS Law Review

No abstract provided.