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Full-Text Articles in Law

The “New” Presumption Against Preemption, Mary J. Davis May 2010

The “New” Presumption Against Preemption, Mary J. Davis

Law Faculty Scholarly Articles

Is there or isn't there a “presumption against preemption”? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …


Conditional Spending And Compulsory Maternity, Nicole Huberfeld Jan 2010

Conditional Spending And Compulsory Maternity, Nicole Huberfeld

Law Faculty Scholarly Articles

More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure …


Native Hawaiians And The Ceded Lands Trust: Applying Self-Determination As An Alternative To The Equal Protection Analysis, R. Hōkūlei Lindsey Jan 2010

Native Hawaiians And The Ceded Lands Trust: Applying Self-Determination As An Alternative To The Equal Protection Analysis, R. Hōkūlei Lindsey

American Indian Law Review

No abstract provided.


Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson Jan 2010

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Defending The Majoritarian Court, Amanda Frost Jan 2010

Defending The Majoritarian Court, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.


An Alternate Functionality Reality, Harold R. Weinberg Jan 2010

An Alternate Functionality Reality, Harold R. Weinberg

Law Faculty Scholarly Articles

Trade dress law does not protect the appearance of a product design feature (e.g., a product's configuration) against unauthorized copying if the feature is functional, but may protect the appearance if the feature is nonfunctional. The functionality doctrine is intended to preserve competition in the market for a product incorporating a design feature that allegedly is protected by trade dress law, and to avoid conflicts between trade dress law and patent law. The Supreme Court last addressed the functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. The Court intended TrafFix to “choke off” anticompetitive trade dress “strike suits.” …


Another Blow To Tribal Sovereignty: A Look At Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes And Local Communities, Andrew G. Hill Jan 2010

Another Blow To Tribal Sovereignty: A Look At Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes And Local Communities, Andrew G. Hill

American Indian Law Review

No abstract provided.


Misplaced Modifiers - Say What, David Spratt Jan 2010

Misplaced Modifiers - Say What, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Structure And Precedent, Jeffrey C. Dobbins Jan 2010

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …