Jurisprudence Commons^™

Erie Step Zero, Alexander A. Reinert

Articles

Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. Thus, when a federal court asserts jurisdiction over pendent state law claims through the exercise of supplemental jurisdiction in a federal question case, courts regularly apply the Erie doctrine to resolve conflict between federal and state law. This Article shows why this common wisdom is wrong.

To understand why, it is necessary to return to Erie’s goals, elaborated over time by the U.S. Supreme Court. Erie and its progeny are steeped in diversity-driven policy concerns: concerns …

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

Is The United States Judicial System Failing Transgender Women? A Critical Overview, Taylor J. House

Florida A & M University Law Review

This paper will discuss the rise of the transgender civil rights movement, the problems in the judicial system, and the rights that should be afforded to transgender women. In part one, I will address the LGBTQA civil rights movement led by transgender women. In part two, I will address the transphobia in the prison system. In part three, I will address the lack of visibility of black transgender issues in the current black civil rights movement. In the fourth part, I will address whether there should be certain fundamental rights given to transgender women. In the fifth part of this …

Jezebels And Jungle Bunnies: How The Stereotypes Of Black Women Shape Legislation, The Legal Profession, And Feminist Jurisprudence, Kersti Myles

The Modern American

No abstract provided.

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

"Burn This Bitch Down!": Mike Brown, Emmett Till, And The Gendered Politics Of Black Parenthood, Teri A. Mcmurtry-Chubb

Nevada Law Journal

No abstract provided.

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Scott-Mclaughlin

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Qualified Immunity When Facts Are In Dispute, Leon Friedman

Touro Law Review

No abstract provided.

The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen

Barry Law Review

No abstract provided.

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

My Body Is My Temple: Utilizing The Concept Of Dignity In Supreme Court Jurisprudence To Fight Sex Reassignment Surgery Requirements For Recognition Of Legal Sex, Doran Shemin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Hate Speech And Double Standards, Thomas M. Keck

Political Science - All Scholarship

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they …

Justice And Accountability: Activist Judging In The Light Of Democratic Constitutionalism And Democratic Experimentalism, William H. Simon

Faculty Scholarship

This essay examines the charge that activist judging is inconsistent with democracy in the light of two recent perspectives in legal scholarship. The perspectives – Democratic Constitutionalism and Democratic Experimentalism – suggest in convergent and complementary ways that the charge ignores or oversimplifies relevant features of both judging and democracy. In particular, the charge exaggerates the pre-emptive effect of activist judging, and it implausibly conflates democracy with electoral processes. In addition, it understands consensus as a basis for judicial legitimacy solely in terms of pre-existing agreement and ignores the contingent legitimacy that can arise from the potential for subsequent agreement.

Disciplining The Right Of Publicity's Nebulous First Amendment Defense With Teachings From Trademark Law, Wee Jin Yeo

Cardozo Arts & Entertainment Law Journal

Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance.

This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments …

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

A Jurisprudence Of Equality: The Fourteenth Amendment And School Desegregation, Stewart Graham

Akron Law Review

This paper will deal with the meaning of equality in legal discourse and the social context which underlies that meaning.

Meritor Savings Bank V. Vinson: The Supreme Court's Recognition Of The Hostile Environment In Sexual Harassment Claims, Victoria T. Bartels

Akron Law Review

This casenote will examine Meritor Savings Bank v. Vinson in light of the brief legal history of Title VII sexual harassment claims and will consider the implications of both the Court's holding and its dicta regarding the undecided issues.

Edmonson V. Leesville Concrete Co.: State Action Or Inaction - Does It Matter?, Chad Murdock

Akron Law Review

This note first reviews the facts of Edmonson. Second, this note examines the history of judicial inquiry into the use of peremptory challenges. Third, this note reviews the application of Batson to civil cases. Finally, this note analyzes the extension of the state action doctrine in Edmonson and discusses an alternative to the Edmonson approach to state action

United States V. Moore: Aids And The Criminal Law: The Witch Hunt Begins, Robert Louis Stauter Md., J.D.

Akron Law Review

The United States v. Moore opinions written by Federal District Judge Diana E. Murphy and Circuit Judge Timbers reveal a fundamental misunderstanding of the disease process of AIDS. The purpose of this article is to help the reader critically analyze these court opinions. To facilitate this discussion the article will first provide the reader with some very basic, yet very technical, vocabulary used by medical specialists who care for and study patients with AIDS.

Mugwump, Mediator, Machiavellian, Or Majority? The Role Of Justice O'Connor In The Affirmative Action Cases, Thomas R. Haggard

Akron Law Review

The purpose of this article is to provide a critical analysis of Justice O'Connor's affirmative action opinions. It will show that while her early record provides justification for all three characterizations, her more recent decisions suggest the emergency of a more favorable image. Her opinions in Croson and Media Broadcasting reflect the realization that a narrow, hair-splitting approach to this critical social and constitutional crisis will do little to hasten its resolution; that there is apparently no form of affirmative action that the liberal wing of the Court is unwilling to endorse, making her consensus by compromise approach a futile …

Civil Rights In The 1990'S: Non-Discrimination Or Quotas?, Donald B. Ayer

Akron Law Review

I would like today to offer some thoughts on the way that we as a country have handled the issue of reverse discrimination as a means of pursuing equal opportunity.

My first observation is that there is an undeniable tension between competing approaches to racial and gender justice that have been advanced and pursued in recent years. I take as my starting point the fundamental principle embodied in the Equal Protection Clause (as well as the Declaration of Independence), that, as the elder Justice Harlan said in dissent in Plessy v. Ferguson,' the Constitution is colorblind, and does not allow …

United Auto Workers V. Johnson Controls, Inc.: One Small Step For Womankind, A. L. Cherry

Akron Law Review

In United Auto Workers v. Johnson Controls, Inc., the U.S. Supreme Court was faced with the task of deciding whether women's childbearing capacity could be used to limit women's job choices and opportunities within certain industrial/ manufacturing fields. The Court decided that the ability to bear children could be used to so limit women, but only if the employer met a high standard. In Johnson Controls, employees who worked in a toxic work environment sought a determination that their employer's fetal protection policy discriminated on the basis of sex in violation of Title VII of the Civil Rights Act …