Law Commons^™

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

Administrative law today is marked by the legal equivalent of mortal combat, where foundational principles are fiercely disputed and basic doctrines are offered up for “execution.” Several factors have led to administrative law’s currently fraught status. Increasingly bold presidential assertions of executive power are one, with President Trump and President Obama before him using presidential control over administration to advance controversial policies that failed to get congressional sanction. In the process, they have deeply enmeshed administrative agencies in political battles – indeed, for President Trump, administrative agencies are the political battle, as his administration has waged an all-out war on …

Janus's Two Faces, Kate Andrias

Faculty Scholarship

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on …

Leon D. Lazer: The Giant Among Us, Howard Glickstein

Touro Law Review

No abstract provided.

A Reader’S Guide To John Milton’S Areopagitica, The Foundational Essay Of The First Amendment Tradition, Vincent A. Blasi

Faculty Scholarship

Fittingly, the most imaginative and densely suggestive of the classic arguments for free speech was written by a poet. Had his career unfolded as he wished, John Milton would never have produced his renowned Areopagitica of 1644. It was only with great reluctance that he undertook to engage in prose polemics during the English Civil War, sacrificing his “calm and pleasing solitariness” to “embark in a troubled sea of noises and hoarse disputes.” He described pamphleteering as something he did “with the left hand” all the while “knowing myself inferior to myself.” Posterity, always a Miltonic concern, has begged to …

The Second Amendment And Gun Control, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2007 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Second Amendment: An Analysis Of District Of Columbia V. Heller, Eileen Kaufman

Eileen Kaufman

No abstract provided.

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Second Amendment And Gun Control, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The Constitution And National Security, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Voting Rights And Freedom Of Speech Decisions From The October 2007 Term, Burt Neuborne

Touro Law Review

No abstract provided.

An Overview Of The October 2007 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The Second Amendment: An Analysis Of District Of Columbia V. Heller, Eileen Kaufman

Touro Law Review

No abstract provided.

Beyond Patents: The Supreme Court’S Evolving Relationship With The Federal Circuit, Daniel Kazhdan

Daniel Kazhdan

Federal Circuit scholars have begun to notice a shift in the way the Supreme Court interacts with the Federal Circuit when it comes to patent questions. Scholars point to the fact that in recent years the Supreme Court reviews the Federal Circuit more frequently and more harshly. The Court also criticizes the Federal Circuit for being too formalistic and too eager to expand its jurisdiction. What scholars have failed to note is that these trends are occurring across the entirety of the Federal Circuit’s decisions, and not just with regards to patent questions. This suggests that there is something about …

Beyond Patents: The Supreme Court’S Relationship With The Federal Circuit, Daniel Kazhdan

Daniel Kazhdan

Federal Circuit scholars have begun to notice a shift in the way the Supreme Court interacts with the Federal Circuit when it comes to patent questions. Scholars point to the fact that in recent years the Supreme Court reviews the Federal Circuit more frequently and more harshly. The Court also criticizes the Federal Circuit for being too formalistic and too eager to expand its jurisdiction. What scholars have failed to note is that these trends are occurring across the entirety of the Federal Circuit’s decisions, and not just with regards to patent questions. This suggests that there is something about …

Beyond Patents: The Supreme Court’S Relationship With The Federal Circuit, Daniel Kazhdan

Daniel Kazhdan

Federal Circuit scholars have begun to notice a shift in the way the Supreme Court interacts with the Federal Circuit when it comes to patent questions. Scholars point to the fact that in recent years the Supreme Court reviews the Federal Circuit more frequently and more harshly. The Court also criticizes the Federal Circuit for being too formalistic and too eager to expand its jurisdiction. What scholars have failed to note is that these trends are occurring across the entirety of the Federal Circuit’s decisions, and not just with regards to patent questions. This suggests that there is something about …

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt

Touro Law Review

No abstract provided.

The Federal Circuit And The Supreme Court, Arthur J. Gajarsa, Lawrence P. Cogswell

American University Law Review

No abstract provided.

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

The Copyright Paradox, Tim Wu

Faculty Scholarship

Copyright law has become an important part of American industrial policy. Its rules are felt by every industry that touches information, and today that means quite a bit. Like other types of industrial policy, copyright in operation purposely advantages some sectors and disadvantages others. Consequently, today's copyright courts face hard problems of competition management, akin to those faced by the antitrust courts and the Federal Communications Commission.

How should courts manage competition using copyright? Over the last decade, writers have begun to try to understand the "other side" of copyright, variously called its innovation policy, communications policy, or regulatory side.Here …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.

Palazzolo V. Rhode Island: The Supreme Court's Expansion Of Subsequent Owners' Rights Under The Takings Clause (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Gang Loitering, The Court, And Some Realism About Police Patrol, Debra A. Livingston

Faculty Scholarship

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago's "gang loitering" ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer's authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After …