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Articles 1 - 30 of 38
Full-Text Articles in Law
The Institutionalist Turn In Copyright, Shyamkrishna Balganesh
The Institutionalist Turn In Copyright, Shyamkrishna Balganesh
Faculty Scholarship
The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The institutionalist turn does not imply that the Court’s decisions have altogether avoided engaging substantive copyright issues; merely that its engagement of copyright doctrine has come to be intertwined with — and …
The Roberts Court And Administrative Law, Gillian E. Metzger
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
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
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
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
The Second Amendment And Gun Control, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
The Constitution And National Security, Erwin Chemerinsky
The Constitution And National Security, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz
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
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
Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz
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
The Second Amendment And Gun Control, Erwin Chemerinsky
Touro Law Review
No abstract provided.
The Constitution And National Security, Erwin Chemerinsky
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
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
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
The Second Amendment: An Analysis Of District Of Columbia V. Heller, Eileen Kaufman
Touro Law Review
No abstract provided.
Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz
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
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
The Federal Circuit And The Supreme Court, Arthur J. Gajarsa, Lawrence P. Cogswell
American University Law Review
No abstract provided.
The Copyright Paradox, Tim Wu
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 …
Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens
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 …
Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer
Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer
Scholarly Works
No abstract provided.
Holmes And The Marketplace Of Ideas, Vincent A. Blasi
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 …
The New Censorship: Institutional Review Boards, Philip A. Hamburger
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?
Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz
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
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 …
Article Iii And The Adequate And Independent State Grounds Doctrine , Cynthia L. Fountaine
Article Iii And The Adequate And Independent State Grounds Doctrine , Cynthia L. Fountaine
American University Law Review
No abstract provided.
On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss
On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss
Faculty Scholarship
In the early afternoon of a humid, 97 degree summer day, James Gottshall was part of a crew of mostly 50- to 60-year-old men replacing track for Conrail. Michael Norvick, the crew supervisor, pressed the men to finish the work. He discouraged observance of the scheduled breaks. Richard Johns collapsed in the heat; Norvick ordered the men back to work as soon as a cold compress had revived him. Five minutes later Johns collapsed again, the victim of a heart attack. Gottshall began 40 minutes of ultimately fruitless cardiopulmonary resuscitation on Johns, his friend for 15 years. Norvick was unable …
Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt
Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt
Faculty Scholarship
As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …