Jurisprudence Commons^™

Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson

St. Mary's Law Journal

William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

Faculty Scholarship

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Neutralizing Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court's abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Justice Sandra Day O'Connor: The World's Most Powerful Jurist?, Diane Lowenthal, Barbara Palmer

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

The Dark Side Of Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger as validating the continued use of affirmative action in the struggle against racial injustice. But the Supreme Court's modern race cases rest on a misunderstanding of the nature of contemporary racial discrimination. From Brown, to Bakke, to Grutter, the Court has advanced a colorblind conception of racial equality that treats race-conscious affirmative action as constitutionally suspect, because it deviates from an aspirational baseline of race neutrality that lies at the core of the equal protection clause. However, race neutrality is a hopelessly artificial concept in …

Sandra Day O'Connor's Position On Discrimination, Stephen E. Gottlieb

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Foreword, Paula A. Monopoli

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

"Unexplainable On Grounds Other Than Race": The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment's Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

The Effect Of The Supreme Court's Eleventh Amendment Jurisprudence On Environmental Citizen Suits: Gotcha!, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court's decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the …

United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell

American University Law Review

No abstract provided.

Euclid Lives: The Survival Of Progressive Jurisprudence, Michael Allan Wolf, Charles M. Haar

Law Faculty Publications

The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach - Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co. This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson

All Faculty Scholarship

Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …

Transcript: Must Congress End The Disenfranchisement Of The District Of Columbia? A Constitutional Debate , American University Law Review

American University Law Review

No abstract provided.

From Enemies Of The Crown To Regional Telephone Companies: Bills Of Attainder Reappraised, Michael L. Landsman

Touro Law Review

No abstract provided.

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …

Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …

Right To Trial By Jury, Supreme Court, Appellate Division Fourth Department People V. Perkins

Touro Law Review

No abstract provided.

Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer

St. Mary's Law Journal

This Commentary examines the effect United States Supreme Court decisions on sex discrimination in the legal profession. Discrimination against women currently appears to be alive and well in the legal field. Decisions like Bradwell v. Illinois and In re Lockwood frustrated women attorneys for over a century, allowing states to determine women were unfit for occupations in areas like law. Hishon v. King & Spalding, and later, Price Waterhouse v. Hopkins, applied Title VII protections to evaluations of potential law firm partners—a process previously closed and unassailable for most of the history of the legal profession. More recently, Harris v. …

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …