Law Commons^™

The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger

Touro Law Review

No abstract provided.

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

The Supreme Court’S Limited Public Forum, Sonja R. West

Scholarly Works

When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these …

Justice Stevens, The Writer, Sonja R. West

Scholarly Works

In any discussion about United States Supreme Court Justice John Paul Stevens, you're likely to hear him labeled in a variety of ways--as a brilliant “judge's judge,” the highly successful leader of the Court's more liberal wing, the prolific “maverick,” and a shrewd questioner from the bench. You might also hear him described simply as a polite and humble Midwesterner, bow-tie aficionado and diehard Cubs fan. Yet while Justice Stevens is and was all of these things, there is another important title he richly deserves yet often does not receive--Justice Stevens, the excellent writer.

This essay strives to close that …

Reconstituting The Federalism Battle In Energy Transportation, Jim Rossi, Alexandra B. Klass

Vanderbilt Law School Faculty Publications

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Scotus Denies Review In Gay Rights Case, Arthur S. Leonard

Other Publications

No abstract provided.

Scotus Won’T Step Into Houston Benefits Case, For Now, Arthur S. Leonard

Other Publications

No abstract provided.

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

Scholarly Works

Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett

Scholarly Works

Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking—one of only four broad categories of agency action—and policymakers …

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

Scholarly Works

On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …

The Noteworthy Absence Of Women Advocates At The United States Supreme Court, Jennifer Crystal Mika

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Dizzying Gillespie: The Exaggerated Death Of The Balancing Approach And The Inescapable Allure Of Flexibility In Appellate Jurisdiction, Bryan Lammon

University of Richmond Law Review

In Part I, I provide necessary background on the current re- gime of federal appellate jurisdiction before turning to the rise and fall of Gillespie and the balancing approach. Part I concludes by explaining how inconsistent Gillespie and the balancing approach are with the Supreme Court's current approach to appellate jurisdiction. Part II turns to five areas in which the balancing approach persists in the courts of appeals and demonstrates the influence of the balancing approach, and the often case-by-case nature of decision-making, in each of these areas. And in Part III, I explore the implications of the balancing approach's …

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Chevron Is A Rorschach Test Ink Blot, Jack M. Beermann

Faculty Scholarship

I agree with Alan Morrison that, in some circumstances, courts should defer to legal determinations made by administrative agencies. I disagree, however, with Alan’s view that Chevron provides a suitable framework for such deference. It really boils down to my disagreement with the first sentence of Alan’s article: “In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them.”1 In fact, the Supreme Court adopted nothing in Chevron related to …

A Challenge To Bleached Out Professional Identity: How Jewish Was Justice Louis D. Brandeis?, Russell G. Pearce, Adam B. Winer, Emily Jenab

Touro Law Review

No abstract provided.

"Facts Are Stubborn Things": Protecting Due Process From Virulent Publicity, Benjamin Brafman, Darren Stakey

Touro Law Review

No abstract provided.

Table Of Contents

Touro Law Review

No abstract provided.

Foreword To The Conference: Louis D. Brandeis: An Interdisciplinary Retrospective, Samuel J. Levine

Touro Law Review

On March 31-April 1, 2016, Touro Law Center and the Jewish Law Institute hosted a national conference: Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, across a broad range of disciplines and hailing from across the United States, explored a variety of themes that included, among others: Brandeis’s groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the United States Supreme Court; and his jurisprudence on the Court. In addition to the timeless quality of these themes, the timing of the conference was significant, taking place …

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Touro Law Review

No abstract provided.

Justice Brandeis And Railroad Accidents: Fairness, Uniformity And Consistency, Larry Zacharias

Touro Law Review

No abstract provided.

Solving A Mystery: Justice Brandeis’ Approach To Judicial Decision-Making, Judge Kermit V. Lipez

Touro Law Review

No abstract provided.

Justice Brandeis And Civic Duty In A Pluralistic Society, Joel K. Goldstein

Touro Law Review

No abstract provided.

The Continuing Vitality Of Louis D. Brandeis’S Free Expression Jurisprudence, Frederick M. Lawrence

Touro Law Review

No abstract provided.

Louis Brandeis’S Arc Of Moral Justice, Katherine A. Helm

Touro Law Review

No abstract provided.

Justice Scalia, Originalism And Textualism, Thomas A. Schweitzer

Touro Law Review

No abstract provided.