Law Commons^™

Forum: What’S The Matter With The Supreme Court?, Michael Klarman, Nadine Strossen, Eli Noam, Sanford Levinson, Mark Tushnet

Other Publications

No abstract provided.

Matsushita At Thirty: Has The Pendulum Swung Too Far In Favor Of Summary Judgment?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Supreme Court's ruling in Matsushita Electric Industrial Co. v. Zenith Radio Corp. marked the end of judicial hostility to Rule 56 motions and effectively legitimized the use of summary judgment in antitrust cases. The 5-4 decision dramatically altered the antitrust litigation landscape both procedurally and substantively. Procedurally, the decision underscored the trans-substantive nature of summary judgment, making clear that summary judgment is as appropriate in complex antitrust cases as in any other area of the law. Matsushita also made clear that the legal standards for summary judgment mirror the legal standards for directed verdict at trial. In …

State V. Hill, Nazariy Gavrysh

NYLS Law Review

No abstract provided.

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Separate But (Un)Equal: Why Institutionalized Anti-Racism Is The Answer To The Never-Ending Cycle Of Plessy V. Ferguson, Maureen Johnson

University of Richmond Law Review

No abstract provided.

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The Court's most recent major property law case, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), tackles one of the thorny, recurring issues in regulatory takings jurisprudence: what is the proper “denominator” to use in determining whether a government regulation has so greatly diminished the economic value of a parcel of land that it effects a taking? More specifically, Murr looked at what constitutes the “parcel as a whole” when a landowner holds title to two contiguous lots. Should a court assess the economic impact on the value of each lot separately or the impact on the value of the …

Obergefell Liberates Bathrooms, Ayana Osada

NYLS Law Review

No abstract provided.

The The: The Definit(Iv)E Article On Idea, Mark Weber

College of Law Faculty

A wry look at the use of "the" before the acronym for the Individuals with Disabilities Education Act (IDEA) in the Supreme Court's special education law decisions.

From Loving V. Virginia To Washington V. Davis: The Erosion Of The Supreme Court's Equal Protection Intent Analysis, Angela Onwuachi-Willig

Faculty Scholarship

In 1967, the United States Supreme Court issued an opinion that contained its most searing and explicit condemnation of white supremacy: Loving v. Virginia. At issue in Loving was the constitutionality of a statutory scheme in the state of Virginia that prohibited marriages between individuals solely on the basis of race. Among other things, provisions in this statutory scheme punished intermarriage between a "white person" and a "colored person," meaning not only Blacks, but also Asian Americans and American Indians who did not fall under the Pocahontas Exception. The provisions also punished evasion of the state's interracial marriage ban by …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Proximate Vs. Geographic Limits On Patent Damages, Stephen Yelderman

Journal Articles

The exclusive rights of a U.S. patent are limited in two important ways. First, a patent has a technical scope—only the products and methods set out in the patent’s claims may constitute infringement. Second, a patent has a geographic scope—making, using, or selling the products or methods described in the patent’s claims will only constitute infringement if that activity takes place in the United States. These boundaries are foundational features of the patent system: there can be no liability for U.S. patent infringement without an act that falls within both the technical and geographic scope of the patent.

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …

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

Scholarship@WashULaw

This Article asks whether observable conflicts between judges in a case—interruptions between Supreme Court justices during oral arguments—are associated with future breakdowns in voting agreement among the judges in the case. To do so, we built a dataset containing justice-to-justice interruptions in cases between 1960 to 2015, and employ a framework for measuring case outcomes that treats the outcomes as a set of agreements and disagreements between pairs of justices. We find that on average a judicial pair is 7 percent less likely to vote together in a case for each interruption that occurs in the case between the judicial …

The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz

Student Articles & Notes

This Note presents a narrative on and the history of transgender bathroom rights in this country, beginning with the reasoning for a two-bathroom society and the development of “bathroom laws”. The development of the two-bathroom society is intertwined with and rooted in beliefs that have remained prevalent since the Victorian Era, ideas about core differences between men and women, and how best to protect the virtues of women. In order to weave this narrative, this Note focuses particularly on current cases that are making their way through our Courts: the stories of Gavin Grimm and Coy Mathis, whose battles are …

Is It A Dragon? No, It's A Salamander. The Supreme Court's Effort To Slay The Partisan Gerrymander, Tim Harris

Honors Theses

The Supreme Court sits on the precipice of undertaking major action to limit the strength and scope of partisan gerrymandering. The Court has never struck down a partisan gerrymander. Although the Court appears to possess the authority to invalidate an unconstitutionally discriminatory districting plan, it has never decided on what indicates unconstitutional discrimination in districting. It has never settled on a workable standard to judge whether or not a specific partisan gerrymander is unconstitutional. In November 2016, a lower court in Wisconsin struck down a partisan gerrymander and put forward what it claims is a workable standard to judge the …

The President Is The Chief Executive, But Does Not Control The Mueller Probe, Bruce Green, Rebecca Roiphe

Other Publications

No abstract provided.

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

Touro Law Review

No abstract provided.

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collings Jr.

Scholarly Works

Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

A Descriptive Analysis Of The Fourth Amendment And The Third-Party Doctrine In The Digital Age, Lawrence J. Trautman, Peter Ormerod

Faculty Publications

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital 74 ALB. L.J. …

Loud And Soft Anti-Chevron Decisions, Michael Kagan

Scholarly Works

This Article proposes a methodology for interpreting the Supreme Court's long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful approach, because sometimes Justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Articles

No abstract provided.

Why And How The Issue Of Copyright Registration Made Its Way Up To The Supreme Court, Justin Scharff

Touro Law Review

No abstract provided.

Free Speech And The Confluence Of National Security And Internet Exceptionalism, Alan K. Chen

Sturm College of Law: Faculty Scholarship

As many scholars have recognized, the Supreme Court has not infrequently skewed free speech doctrine in times of war or heightened concerns, real or perceived, about national security. Many reasons have been suggested for this sort of national security exceptionalism. Courts may be uncomfortable shaping long-standing constitutional rules because they may not have full access to the information on which government decisions are based. There may also be concerns about the courts’ institutional competence. At the same time, courts similarly may feel the need to adjust speech doctrine in reaction to rapid technological advances. Like national security threats, emerging technologies …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

A Step Toward Robust Criminal Discovery Reform In Virginia: The Disclosure Of Witness Statements Before Trial, Jennifer Horan

University of Richmond Law Review

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

This article aims to give a succinct review of notable criminal

law and procedure cases decided by the Supreme Court of Virginia

and the Court of Appeals of Virginia during the past year. Instead

of covering every ruling or rationale in these cases, the article

focuses on the "take-away" of the holdings with the most

precedential value. The article also summarizes noteworthy

changes to criminal law and procedure enacted by the 2017 Virginia

General Assembly.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

No abstract provided.