Legal History Commons^™

Institutional Rules, Strategic Behavior And The Legacy Of Chief Justice William Rehnquist: Setting The Record Straight On Dickerson V. United States, Daniel Katz

Daniel M Katz

Why did Justice Rehnquist behave the way he did in Dickerson v. United States? As written, many prevailing accounts accept Justice Rehnquist's opinion in Dickerson v. United States at face value and disavow the potential of a strategic explanation. The difficulty with the non-strategic accounts is their failure to outline explicitly the evidence supporting the uniqueness of their theory. Specifically, these explanations largely ignore the alternative set of preferences which could have produced the Chief's decision. This is troubling because prior scholarship demonstrates that a chief justice possesses a unique set of institutional powers which provides significant incentive for him …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Regionalism, The Supreme Court, And Effective Governance: Healing Problems That Know No Bounds, Nick J. Sciullo

Nick J. Sciullo

By actively endorsing remedies that favor a city-suburb divide, the Supreme Court has failed to allow regional development. The Supreme Court's federalism jurisprudence is unresponsive to the myriad issues pervading society. Ultimately, individuals must take action, through a process formulated in this article, to change the way in which governments and the courts respond to the needs of populations.

A battery of cases including Brown v. Board of Education and its progeny, Missouri v. Jenkins and Milliken v. Bradley, reached the Supreme Court during the tumultuous 1950s, 1960s, and 1970s. A vast array of environmental laws and housing regulations also …

The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard

Steve Sheppard

Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.

The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …