Supreme Court of the United States Commons^™

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

All Faculty Scholarship

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

The Other Sullivan Case, Garrett Epps, Garrett Epps

All Faculty Scholarship

The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court's defense of free speech and press in the case's vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts' vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph.

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Scholarly Articles in Law Reviews & Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

A Parent’S Right To Choose: The Constitutionality Of Grandparent Visitation According To Troxel V. Granville, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

The New Textualism And The Rule Of Law Subtext In The Supreme Court's Bankruptcy Jurisprudence, Alan Schwartz

NYLS Law Review

The Supreme Court is thought to use a method of statutory interpretation called "the new textualism" when construing Federal Statutes, including the Bankruptcy Code. The new textualism, in brief, ties interpreters more closely to the text than more traditional interpretative methods. This Essay inquires into the justifications for the new textualism, but its primary goal is to argue that the Court prefers an important justification of this interpretative method to the method itself. The justification holds that interpretation should advance the rule of law virtues of certainty and predictability. A court that is committed to the new textualism would construe …

Introduction, Honorable Leon D. Lazer

Touro Law Review

No abstract provided.

Introduction, Dean Howard Glickstein

Touro Law Review

No abstract provided.

The Supreme Court, Visibility, And The "Politics Of Presence", Kathryn Abrams

Vanderbilt Law Review

Jane Schacter has made a critical contribution by elaborating the meaning and potential consequences of the Court's holding in Romer v. Evans. At the center of her account is the thought-provoking suggestion that the Court's opinion enables a visibility or "presence" for gays and lesbians in the extended realm of the "political." While I salute her illumination, I am less certain about whether to share her optimism. In this Comment, I will explore the latter question by looking beyond the decision in Romer to other cases involving group-based civil rights. I will probe the effects of Supreme Court decisionmaking on …

Employees: Show Us Your Paycheck, Dina Mastellone

Touro Law Review

No abstract provided.

The Constitution And Racial Preference In Law School Admissions, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

The October 1992 Supreme Court Term And Antitrust: More Objectivity Than Ever, Stephen Calkins

Law Faculty Research Publications

Time and again the Rehnquist Court has favored antitrust certainty. When faced with a choice between achieving individualized justice and adhering to relatively clear, generalized rules, it has usually chosen the latter. The certainty of objective evidence has been preferred to the more customized resort to subjective evidence.

This pattern continued during the 1992-93 term. Perceived objectivity through generalized rules triumphed in the term's four antitrust cases, Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., Spectrum Sports, Inc. v. McQuillan, Hartford Fire Insurance Co. v. California, and Brooke Group Ltd. v. Brown & Williamson Tobacco …

Supreme Court Antitrust 1991-92: The Revenge Of The Amici, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

White V. Illinois: The Confrontation Clause And The Supreme Court's Preference For Out-Of-Court Statements, Nancy H. Baughan

Vanderbilt Law Review

The Confrontation Clause, found in the Sixth Amendment to the United States Constitution, provides criminal defendants with the right to confront adverse witnesses.' A literal interpretation of the Confrontation Clause would preclude courts from allowing the admission of all hearsay testimony. The Court has rejected this interpretation, noting that it would render meaningless every exception to the rule against hearsay. Although unwilling to hold that the Confrontation Clause mandates exclusion of all hearsay, the Court has found that the Clause requires the exclusion of some hearsay statements. The Supreme Court has struggled to define the relationship between the exceptions to …

Draft Of Reality As Artifact: From Feist To Fair Use - 1992, Wendy J. Gordon

Scholarship Chronologically

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "It's a fact that this [ X ] happened," the speaker usually means, "I believe the thing I describe has happened in the world". But when a litigator says something is a "fact" she often means only that a good faith argument can be made on behalf of its existence. Two sets of fact finders can look at the same event and come to diametrically opposed conclusions-- each …

The 1990-91 Supreme Court Term And Antitrust: Toward Greater Certainty, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

The Supreme Court And The Bill Of Rights, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

A Comparison Of A Mentally Ill Individual's Right To Refuse Medication Under The United States And The New York State Constitutions, William M. Brooks

Touro Law Review

No abstract provided.

The October 1989 Supreme Court Term And Antitrust: Power, Access, And Legitimacy, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

Alternative Dispute Resolution In The Federal Government: A View From Congress, Senator Orrin G. Hatch

Touro Law Review

No abstract provided.

The Salerno Challenge To The Bail Reform Act Of 1984, Aba Heiman

Touro Law Review

No abstract provided.

Judicial Policy-Making And Information Flow To The Supreme Court, Charles M. Lamb

Vanderbilt Law Review

This article is intended as an exploratory step toward filling the gap in the literature by synthesizing the fragmentary knowledge relating to judicial information flow. It attempts to advance the dialogue initiated by Professors Miller and Barron by providing a number of components necessary for an adequate model; it seeks also to suggest additional considerations necessary for a more useful model and thus for a continuing systematic inquiry into the information flow process. Results of the Miller-Barron article supply the background for the work reported here. Times, Roe, and Doe and the Miller-Barron findings are considered in the first two …

Book Reviews, William L. Shaw, Cephus L. Stephens

Vanderbilt Law Review

BOOK REVIEWS

LITTLE GROUPS OF NEIGHBORS: THE SELECTIVE SERVICE SYSTEM. By James W. Davis, Jr. and Kenneth M. Dolbeare. Markham Publishing Co., Chicago, 1968. Pp. 268.

reviewer: William L. Shaw

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THE SUPREME COURT AND THE NEWS MEDIA. By David L. Grey, Evansville: Northwestern University Press. 1968. Pp. 194. $5.95.

reviewer: Cephus L. Stephens