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United States Supreme Court

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Determining Notoriety In Supreme Court Decisions , G. Edward White Aug 2012

Determining Notoriety In Supreme Court Decisions , G. Edward White

Pepperdine Law Review

No abstract provided.


Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr. Aug 2012

Explaining Korematsu: A Response To Dean Chemerinsky , Robert J. Pushaw Jr.

Pepperdine Law Review

No abstract provided.


Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii Aug 2012

Redeeming Erie: A Response To Suzanna Sherry , Donald Earl Childress Iii

Pepperdine Law Review

No abstract provided.


Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry Aug 2012

Wrong, Out Of Step, And Pernicious: Erie As The Worst Decision Of All Time, Suzanna Sherry

Pepperdine Law Review

This essay was written for “Supreme Mistakes: Exploring the Most Maligned Decisions in Supreme Court History.” A symposium on the worst Supreme Court decision of all time risks becoming an exercise best described by Claude Rains’s memorable line in Casablanca: “Round up the usual suspects.” Two things saved this symposium from that fate. First, each of the usual suspects was appointed defense counsel, which made things more interesting. Second, a new face found its way into the line-up: Erie Railroad v. Tompkins. My goal in this essay is to explain why Erie is in fact guiltier than all of the …


A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald Aug 2012

A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald

Pepperdine Law Review

A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.


Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar Aug 2012

Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar

Pepperdine Law Review

The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.


Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman Aug 2012

Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman

Pepperdine Law Review

When thinking about Dred Scott, the issue is not how do we “rehabilitate” the opinion. The goal of scholarship here is to understand the opinion, place it in the context of its own time, and explain its enduring significance. After that, we may praise or damn it, and rehabilitate it or condemn it. No one today likes the Dred Scott opinion or the result. But, this article argues that Professor Daniel A. Farber is so incensed by the opinion that he vastly overstates its historical significance including incorrectly blaming Chief Justice Taney for causing the Civil War. This article rejects …


Anti-Canonical Considerations, Edward J. Larson Aug 2012

Anti-Canonical Considerations, Edward J. Larson

Pepperdine Law Review

No abstract provided.


Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik Jul 2012

Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik

Indiana Law Journal

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …


Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso May 2012

Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso

Pepperdine Law Review

No abstract provided.


The Roberts Court & Executive Power, Jeffrey Rosen Mar 2012

The Roberts Court & Executive Power, Jeffrey Rosen

Pepperdine Law Review

No abstract provided.


The Alito/O'Connor Switch, Joan Biskupic Mar 2012

The Alito/O'Connor Switch, Joan Biskupic

Pepperdine Law Review

No abstract provided.


Introduction To Symposium: An Enigmatic Court? Examining The Roberts Court As It Begins Year Three, Douglas W. Kmiec, Kenneth W. Starr Mar 2012

Introduction To Symposium: An Enigmatic Court? Examining The Roberts Court As It Begins Year Three, Douglas W. Kmiec, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.


The Second Annual William French Smith Memorial Lecture: A Conversation With Justice Clarence Thomas, Clarence Thomas, Kenneth W. Starr, Shelley Saxer, Douglas W. Kmiec, Charles R. Eskridge Feb 2012

The Second Annual William French Smith Memorial Lecture: A Conversation With Justice Clarence Thomas, Clarence Thomas, Kenneth W. Starr, Shelley Saxer, Douglas W. Kmiec, Charles R. Eskridge

Pepperdine Law Review

No abstract provided.


Thirty-First Annual Pepperdine University School Of Law Dinner: Keynote Address, John G. Roberts Jr Feb 2012

Thirty-First Annual Pepperdine University School Of Law Dinner: Keynote Address, John G. Roberts Jr

Pepperdine Law Review

No abstract provided.


Introduction , J. Matt Williams Feb 2012

Introduction , J. Matt Williams

Pepperdine Law Review

No abstract provided.


The Judicial Assault On The Clean Water Act, Mark Squillace Jan 2012

The Judicial Assault On The Clean Water Act, Mark Squillace

Publications

No abstract provided.


The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar Jan 2012

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4


The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks Jan 2012

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.


Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla Sep 2011

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Michigan Journal of Race and Law

Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …


But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe Apr 2011

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …


Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard Jan 2011

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Articles

To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.


Book Review, Derek Kiernan-Johnson Jan 2011

Book Review, Derek Kiernan-Johnson

Publications

No abstract provided.


Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak Jan 2010

Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak

Articles by Maurer Faculty

In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …


Constitutional Expectations, Richard A. Primus Jan 2010

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …


Charles Evans Hughes, Richard D. Friedman Jan 2009

Charles Evans Hughes, Richard D. Friedman

Book Chapters

Hughes, Charles Evans (1862-1948). Lawyer, politician, diplomat, and chief justice of the United States. Hughes was born in Glens Falls, N.Y., the son of a Baptist preacher from the English- Welsh border country who changed congregations from time to time. Young Hughes spent his earliest years in several locations in New York and New Jersey before the family settled in Brooklyn. A precocious child, he was educated both at home and in public school. At age 14, he began college at Madison (now Colgate) University, a Baptist institution. After his sophomore year, he transferred to Brown, which also had a …


Owen J. Roberts, Richard D. Friedman Jan 2009

Owen J. Roberts, Richard D. Friedman

Book Chapters

Roberts, Owen Josephus (1875-1955). Lawyer and U.S. Supreme Court justice. Roberts was born in Philadelphia and graduated from the University of Pennsylvania in 1895 and from its law school in 1898. He taught there part-time beginning almost immediately until 1919, reaching the rank of full professor in 1907. While operating a profitable dairy farm, Roberts practiced law privately, punctuated by a three-year stint beginning in 1901 as first assistant district attorney of Philadelphia County. Tall and robust, he made a striking figure in both classroom and courtroom.


On Empathy In Judgment (Measure For Measure), Kenji Yoshino Jan 2009

On Empathy In Judgment (Measure For Measure), Kenji Yoshino

Cleveland State Law Review

This article is based on a Baker-Hostetler presentation given by the author at the Cleveland-Marshall College of Law. The author compares the nomination process of Supreme Court justices and the conflict between empathy and rule of law with William Shakespeare's Measure for Measure.


From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz Jan 2009

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Articles

In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …


Limits Of Interpretivism, Richard A. Primus Jan 2009

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.