Courts Commons^™

The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger

Fordham Law Review

PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.

Emerging Constitutional Conflicts And The Role Of Courts, John M. Greabe

Law Faculty Scholarship

[Excerpt] "When a court exercises judicial review, it tells Congress, the executive branch or a state to refrain from action that is under way or to take some action that is not being taken. Either way, a democratically accountable institution is told that it cannot do what the people (presumably) want it to do, or that it must do what the people (presumably) do not want it to do."

Law Of The Sea-Submerged Lands-A State Must Exercise Substantial, Continuous, And Recognized Authority To Establish A Body Of Water As A Historic Bay, Sarah Melissa Stebbins

Georgia Journal of International & Comparative Law

No abstract provided.

Supreme Court Of The United States, October Term 2017 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman

Michigan Law Review Online

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably …

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

Publications

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Historical Gloss, Constitutional Conventions, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to …

The Amicus Machine, Allison Orr Larsen, Neal Devins

Faculty Publications

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …

Summary Reversals In The Roberts Court, Edward A. Hartnett

Cardozo Law Review

The article examines the use of summary reversals by the Roberts Court, arguing that these decisions—where the Court reverses lower court rulings without full briefing or oral argument—serve important administrative functions and address specific types of errors, despite longstanding criticism. The author identifies patterns in the areas of law and types of errors targeted by these reversals, concluding that the practice persists due to its utility in maintaining judicial hierarchy and efficiency, even as critics question its propriety.

Anti-Disruption Statutory Construction, Jonathan H. Adler

Cardozo Law Review

The article examines Chief Justice John Roberts' approach to statutory interpretation, characterizing it as a form of "Burkean minimalism." This approach prioritizes judicial restraint, avoiding disruptive outcomes and maintaining stability in the law, even if it requires departing from the plain meaning of statutory text. Roberts' decisions often reflect a pragmatic willingness to reinterpret statutes to prevent significant disruptions, uphold legislative enactments, and preserve constitutional harmony, rather than adhering strictly to textualist or doctrinal purity.

Grow Up Virginia: Time To Change Our Filial Responsibility Law, Sylvia Macon

University of Richmond Law Review

No abstract provided.

Issue 1: Table Of Contents

University of Richmond Law Review

No abstract provided.

Honoring Dan Meltzer, Bradford R. Clark

Notre Dame Law Review

Dan Meltzer was a giant in the field of Federal Courts, and it is hard to overstate his influence on its development. He taught Federal Courts at Harvard Law School and was a long-time co-author of Hart & Wechsler’s The Federal Courts and the Federal System (“Hart & Wechsler ”), the casebook that created the field and shaped how generations of judges, lawyers, and scholars think about complex questions of federal jurisdiction. In addition, Dan enriched the field immeasurably by writing seminal articles on a wide range of Federal Courts topics. His work was characterized by deep knowledge of the …

Revising Our “Common Intellectual Heritage”: Federal And State Courts In Our Federal System, Judith Resnik

Notre Dame Law Review

This Essay pays tribute to Daniel Meltzer’s insight that, to the extent “lawyers have a common intellectual heritage, the federal courts are its primary source.” I do so by analyzing how that heritage is made and remade, as political forces press Congress to deploy federal courts to protect a wide array of interests and state courts absorb the bulk of litigation. The heritage that Meltzer celebrated and to which he contributed was the outcome of twentieth-century social movements that focused on the federal courts as hospitable venues, serving as vivid sources of rights and remedies. A competing heritage has since …

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan

William & Mary Bill of Rights Journal

Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …

Insider Trading Law That Works: Using Newman And Salman To Update Dirks'S Personal Benefit Standard, Mark Hayden Adams

Loyola of Los Angeles Law Review

No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Aliens - Immigration And Naturalization - Seasonal And Daily Commuters Qualify As “Special Immigrants” Who Are Lawfully Admitted For Permanent Residence And Are Returning From A Temporary Visit Abroad, Michael Kendall-Patrick Williams

Georgia Journal of International & Comparative Law

No abstract provided.

Keynote Remarks: Academic Activism And Freedom Of Speech, Gene Nichol

Seattle University Law Review

I am much honored to be here, in such remarkable company. By my lights, the folks in this room represent the best of the legal academy; those who think, stunningly, that the real world, outside campus walls, actually matters; those who, every day, live out Václav Havel’s definition of hope. Havel thought of hope not as a prediction of success or a description of the world around us but as a conscious choice to live in the belief that we can make a difference in the quality of our shared, and sometimes threatened, lives. When you think about it, the …

“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer

Seattle University Law Review

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support …

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Brief Amicus Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett

Court Briefs

No. 15-866
Star Athletica, LLC v. Varsity Brands, Inc.

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of Argument:

In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The …

Admiralty - Shipowners’ Limited Liability Act - A Shipowner Cannot Invoke The Act To Limit His Liability For Wreck Removal Expenses Since A Statutory Duty To Remove A Sunken Vessel Prevents Him From Being “Without Privity Or Knowledge,” A Condition Precedent To The Invocation Of The Act, Thomas C. Holcomb

Georgia Journal of International & Comparative Law

No abstract provided.

Aviation Law - Insurance - Neither “War Risk” Nor Other Standard Terms Denoting Civil Disturbance Within The Exclusionary Clauses Of All Risks Policies Encompass The Destruction Of An Aircraft By Hijackers, Kathy D. Izell

Georgia Journal of International & Comparative Law

No abstract provided.