Law Commons^™

Korematsu Overruled? Far From It: The Supreme Court Reloads The Loaded Weapon, Lorraine Bannai

Seattle Journal for Social Justice

No abstract provided.

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

Brief Of Tax Law Professors As Amici Curiae In Support Of Petitioner, Edward A. Zelinsky

Amicus Briefs

Amici are professors of tax law at universities across the United States. As scholars and teachers, they have considered the doctrinal roots and practical consequences of judicial limits on state and local taxation. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in the Appendix to this brief.

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

May You Live In Interesting Times: Patent Law In The Supreme Court, Seth P. Waxman

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa

Northwestern Journal of Law & Social Policy

No abstract provided.

Assessing The Proper Judicial Role In Reviewing Immigrant Detention, Megan K. Bradley

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Assessing The Proper Judicial Role In Reviewing Immigrant Detention, Megan K. Bradley

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Supreme Court Of The United States, October Term 2018 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Developing A Taxonomy Of Lies Under The First Amendment, Alan K. Chen, Justin Marceau

Sturm College of Law: Faculty Scholarship

In previous work, we argued that the First Amendment limits the power of government to regulate lies that, paradoxically, promote the democracy and truth-finding functions of free speech. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435 (2015). In doing so, we claimed that the Supreme Court had previously protected lies solely to avoid chilling truthful speech, and not because they might have intrinsic value in our constitutional democracy. In that work, we did not fully address a related question – under what circumstances are lies subject to …

A Few Observations About The Curious State Of Massachusetts Labor Law: Public-Sector Unions After Janus, Maria O'Brien

Faculty Scholarship

This essay focuses on this hurried, even panicked response to Janus in Massachusetts and evaluates the likely outcome that encouraging a public union to treat member employees in one way and non-member employees in a distinctly less generous way will have for employees and the unions. I begin, in Part II, by noting (and explaining) the first and most apparent oddity in this story: why is an employer - i.e. the state - rushing to help its putative, arms-length bargaining partners? In Massachusetts, there are many different public-sector unions. School teachers, ¹³ firefighters,¹⁴ clerical workers, ¹⁵ state and local …

Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai

Faculty Scholarship

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

The Power To Exclude And The Power To Expel, Donald J. Smythe

Faculty Scholarship

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate …

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Bank Of America V. City Of Miami: Standing And Causation Under The Fair Housing Act, Alan M. White

Loyola of Los Angeles Law Review

No abstract provided.

Fairness Over Finality: Peña-Rodriguez V. Colorado And The Right To An Impartial Jury, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

Stretching Armstrong: How The Eighth Circuit Incorrectly Applied Supreme Court Precedent In Does V. Gillespie, Lauren E. Pair

Saint Louis University Journal of Health Law & Policy

Medicaid serves as an important source of health insurance for millions of Americans. One of the Act’s core tenants is the patient’s freedom to choose from any qualified and willing provider. This “freedom of choice” provision was eventually codified, and subsequent protections were put in place to protect a patient’s choice regarding family planning services. However, as states attempt to limit access to family planning services by severing their Medicaid contracts with Planned Parenthood, patients must rely on § 1983 to pursue relief in federal courts. Section 1983 provides a right of action for the violation of any federal right …

To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte

Law Faculty Articles and Essays

Some Supreme Court precedents go through extensive death spasms before being interred. Lochner v. New York, Plessy v. Ferguson, and Austin v. Michigan Chamber of Commerce come to mind. Others like Chisholm v. Georgia and Minersville School District v. Gobitis incurred a swift and summary execution. Still others, overtaken by subsequent cases, remain wraith-like presences among the Court’s past acts: Beauharnais v. Illinois and Buck v. Bell, for example, remain “on the books.”

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Law Faculty Articles and Essays

On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."

One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

Utah Law Faculty Scholarship

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Substantive Due Process And The Politicization Of The Supreme Court, Eric Millman

CMC Senior Theses

Substantive due process is one of the most cherished and elusive doctrines in American constitutional jurisprudence. The understanding that the Constitution of the United States protects not only specifically enumerated rights, but also broad concepts such as “liberty,” “property,” and “privacy,” forms the foundation for some of the Supreme Court’s most impactful—and controversial—decisions.

This thesis explores the constitutional merits and politicizing history of natural rights jurisprudence from its application in Dred Scott v. Sandford to its recent evocation in Obergefell v. Hodges. Indeed, from slavery to same-same sex marriage, substantive due process has played a pivotal role in shaping …

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Faculty Articles

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price

Faculty Articles

First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.

Second, the Court's pronouncement in the Chinese …

Midland Funding V. Johnson And The Pernicious Problem Of Stale-Debt Claims, Kara J. Bruce

Loyola of Los Angeles Law Review

No abstract provided.

Buck V. Davis: Anti-Discriminatory Principles In Habeas Corpus Cases, Daniella Rubin

Loyola of Los Angeles Law Review

No abstract provided.

County Of Los Angeles V. Mendez: Defending The Constitutionality Of The "Provocation Rule", Layla Bishara

Loyola of Los Angeles Law Review

No abstract provided.

The Proper Application Of Nominative Fair Use In Trademark Law: Why International Information Systems Security Certification Consortium, Inc. V. Security University, Llc Sets The Preeminent Standard, Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.