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Welch V. United States: Brief Of Scholars Of Federal Courts And Sentencing As Amici Curiae In Support Of Petitioner, Eve Brensike Primus

Appellate Briefs

Amici are scholars of federal courts, sentencing, and criminal law. They have a shared interest in the application of retroactivity principles to decisions regarding criminal sentencing and believe that the intellectual history of retroactivity doctrine is helpful to answering the question in this case.

If Teague's retroactivity bar applies to collateral challenges to federal sentences, then the rule announced in Johnson applies retroactively under Teague (either because it qualifies as an "exception" to Teague's retroactivity bar, or because it was not subject to the bar in the first place). If Teague's bar against retroactive application of new constitutional rules does …

Complete Preemption And Copyright: Toward A Successive Analysis, Mark Lindsay

Georgia Journal of Law & Technology

No abstract provided.

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Petitioners, Steven T. Collis, Michael Robertson, Adam A. Hubbard, Douglas Laycock, Gerard V. Bradley, Richard W. Garnett, Kristine J. Kalanges

Court Briefs

No. 15-862
Stormans, Inc. v. John Wiesman

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

This Court’s free-exercise jurisprudence is defined by two cases with facts at opposite ends of a continuum. The Court decided them a quarter century ago, and it has provided no further guidance despite a growing circuit split. Lower courts that carefully examined this Court’s opinions found a clear rule that governments must treat religious conduct as well as they treat analogous secular conduct—or face strict scrutiny. But that rule has …

Immigration Enforcement And State Post-Conviction Adjudications: Towards Nuanced Preemption And True Dialogical Federalism, Daniel Kanstroom

University of Miami Law Review

The relationship between federal immigration enforcement and state criminal, post-conviction law exemplifies certain inevitable complexities of preemption and federalism. Because neither perfect uniformity nor complete preemption is possible, we must consider two questions: First, whether (and, if so, how) state courts adjudicating rights should account for legitimate federal immigration law goals, such as uniformity and finality? Second, how should federal courts deploy preemption and federalism principles when faced with challenges by federal authorities to such state court actions? This article offers a framework of “dialogical federalism,” seeking to normalize certain tensions under a rubric of dialogue, rather than formal hierarchy …

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

Broken Windows Policing And Community Courts: An Unholy Alliance, Robin Steinberg, Skylar Albertson

Cardozo Law Review

No abstract provided.

Cops In Court: Assessing The Criminal Prosecutions Of Police In Six Major Scandals In The New York City Police Department From 1894 To 1994, Kevin E. Mccarthy

Dissertations, Theses, and Capstone Projects

From the 1890s to the 1990s, the police department in New York City experienced six major corruption scandals that occurred at approximately twenty-year intervals. These cyclical scandals all involved intense public attention, examination by an outside agency, and a comprehensive report calling for departmental reforms to address corruption issues. The scandals resulted in turnover of police commissioners and political fallout for sitting mayors. Police officers faced transfers, administrative sanctions, dismissals, and forced retirements. Some faced criminal prosecution.

This dissertation examines prosecutions of police in the context of the city’s changing social and political circumstances surrounding the scandals, while recognizing the …

Introduction: Broken Windows: Restoring Social Order Or Damaging And Depleting New York's Poor Communities Of Color?, Jonathan Oberman, Kendea Johnson

Cardozo Law Review

No abstract provided.

Brief Amici Curiae Of 37 Intellectual Property Professors In Support Of Petition For Certiorari, Mark A. Lemley, Mark Mckenna

Court Briefs

No. 15-777
Samsung Electonics Co., Ltd. v. Apple Inc.

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

From the Summary of Argument:

This case presents two issues that justify this Court’s review.
First, the Federal Circuit upheld a finding of design patent infringement based on the very same Apple designs that it found functional under trade dress law. Such a counterintuitive outcome is possible because the Federal Circuit has constructed a highly constrained definition of functionality in design patent law, which is at odds with this Court’s precedent in both utility …

Brief Of Amici Curiae Constitutional Law Scholars In Support Of Petitioners, Ryan A. Shores, William J. Haun, Richard W. Garnett

Court Briefs

Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, & 15-191
Little Sisters of the Poor Home for the Aged v. Sylvia Matthews Burwell

On Writs of Ceriorari to the United States Courts of Appeals for the Third, Fifth, Tenth, and District of Columbia Circuits

From the Summary of Argument

“[I]n a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781, 2785 (2014) (Kennedy, J., concurring). The Religious Freedom Restoration Act (“RFRA”)2 addresses that difficulty by harmonizing religious freedom and …

Eviction Court And A Judicial Duty Of Inquiry, Harold Krent, Peter Cheung, Kayla Higgins, Matthew Mcelwee

All Faculty Scholarship

No abstract provided.

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Justice Scalia And The Rule Of Law: Originalism Vs. The Living Constitution, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating …

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland …

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Scholarly Articles

Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive …

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Scholarly Articles

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book, …

Truthiness And The Marble Palace, Chad M. Oldfather, Todd C. Peppers

Scholarly Articles

Tucked inside the title page of David Lat’s Supreme Ambitions, just after a note giving credit for the cover design and before the copyright notice, sits a standard disclaimer of the sort that appears in all novels: “This is a work of fiction. Names, characters, places, and events either are the products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.” These may be the most truly fictional words in the entire book. Its judicial characters are recognizable as versions of real judges, including, among others, …

It’S So Hard To Say Goodbye: Why Article Iii Judges Leave (Or Don’T), Johnnie Blakeney Rawlinson

Duke Law Master of Judicial Studies Theses

Thurgood Marshall famously stated: “I was appointed to a life term, and I intend to serve it.” Justice Marshall’s sentiment is in lockstep with the expressed intent of the Founding Fathers, who embedded the concept of life tenure for Article III judges into the Constitution at the time of its adoption. This paper explores the extent to which Article III judges in this era echo the sentiment expressed by Justice Marshall, and the reasons some Article III judges have elected not to serve a life term. The paper also examines whether Article III judges have gravitated toward careers in the …

Enhancing Judicial Institutions: Enhancing Economic Development, Stephane Alia Haisley

Duke Law Master of Judicial Studies Theses

Since the 1980s, scholars and development banks have recognized the link between judicial institutions and economic growth. This thesis proposes to explore the role of judicial institutions in the performance of economies and questions whether enhancing judicial institutions can result in enhancing economic development in developing countries. Since the 1990s development banks have explored the role of judicial institutions in the quest for economic development. Both the World Bank and the International Monetary Fund (IMF) have done this through the pursuit of judicial reform efforts in countries with ailing economies. The focus has been on improving the efficiency of the …

Beware Of Judging A Book Just By Its Cover: Are The German Rules Of Civil Procedure, In Their Practical Application, Really As Capable To Facilitate A Speedy And Fair Trial As One Might Think?, Julia Prahl

Duke Law Master of Judicial Studies Theses

No abstract provided.

Are We Insane? The Quest For Proportionality In The Discovery Rules Of The Federal Rules Of Civil Procedure, Paul W. Grimm

Duke Law Master of Judicial Studies Theses

No abstract provided.

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

Data Breaches, Identity Theft And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits, Bradford Mank

Faculty Articles and Other Publications

In data breach cases, the lower federal courts have split on the question of whether the plaintiffs meet Article III standing requirements for injury and causation. In its 2013 decision Clapper v. Amnesty International USA, the Supreme Court, in a case involving alleged electronic surveillance by the U.S. government’s National Security Agency, declared that a plaintiff alleging that it will suffer future injuries from a defendant’s allegedly improper conduct must show that such injuries are “certainly impending.” Since the Clapper decision, a majority of the lower federal courts addressing “lost data” or potential identity theft cases in which there is …

Supreme Court Of The United States, October Term 2016 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Contents

Tennessee Law Review

No abstract provided.

Acting Gay, Acting Straight: Sexual Orientation Stereotyping, Luke A. Boso

Tennessee Law Review

What does it mean to discriminate because of sexual orientation? This legal question will increasingly arise as many states and municipalities enact laws that include sexual orientation as a protected trait. Without evidence of overt hostility towards or moral disapproval of gays as a group, plaintiffs may introduce evidence of sexual orientation stereotyping to make their case: i.e., evidence that an actor relied on group-based sexual orientation stereotypes in deciding to discriminate against an individual plaintiff. But how should courts determine whether the stereotyping relates to sexual orientation? It is important to answer this question for the litigants and judges …

Constitutional Law-Fourth Amendment-Police Dog Sniffs And "Completing The Mission", J. Scott White

Tennessee Law Review

No abstract provided.

Foreword - Leading The Future: Symposium On Professional Leadership Education, Douglas A. Blaze

Tennessee Law Review

No abstract provided.

Lessons In Leadership Development From A Business School Setting, Cheryl D. Barksdale, Lane Morris

Tennessee Law Review

No abstract provided.