Equality Arguments For Abortion Rights,
2013
Duke Law School
Equality Arguments For Abortion Rights, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clauses. But in the four decades since Roe, the U.S. Supreme Court has come to recognize the abortion right as an equality right as well as a liberty right. In this Essay, we describe some distinctive features of equality arguments for abortion rights. We then show how, over time, the Court and individual Justices have begun to employ equality arguments in analyzing the constitutionality of abortion restrictions. These arguments first appear inside of substantive due process case law, and then as claims …
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party,
2013
Duke Law School
Brief Of Professor Stephen E. Sachs As Amicus Curiae In Support Of Neither Party, Stephen E. Sachs
Faculty Scholarship
The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.
If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant¹s only remedy is a transfer motion under § 1404.
Both sides are wrong. Forum-selection …
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen,
2013
Duke Law School
The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel
Faculty Scholarship
No abstract provided.
United States V. Windsor And The Role Of State Law In Defining Rights Claims,
2013
Duke Law School
United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young
Faculty Scholarship
The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …
A General Defense Of Erie Railroad Co. V. Tompkins,
2013
Duke Law School
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
Faculty Scholarship
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …
Exhuming The “Diversity Explanation” Of The Eleventh Amendment,
2013
Duke Law School
Exhuming The “Diversity Explanation” Of The Eleventh Amendment, Thomas D. Rowe Jr.
Faculty Scholarship
This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of …
The Origin And Evolution Of The Third Party “Refusal To Deal” Defense In Illinois Corporate Opportunity Cases, 46 J. Marshall L. Rev. 937 (2013),
2013
UIC School of Law
The Origin And Evolution Of The Third Party “Refusal To Deal” Defense In Illinois Corporate Opportunity Cases, 46 J. Marshall L. Rev. 937 (2013), William Lynch Schaller
UIC Law Review
No abstract provided.
Voir Dire In The #Lol Society: Jury Selection Needs Drastic Updates To Remain Relevant In The Digital Age, 47 J. Marshall L. Rev. 459 (2013),
2013
UIC School of Law
Voir Dire In The #Lol Society: Jury Selection Needs Drastic Updates To Remain Relevant In The Digital Age, 47 J. Marshall L. Rev. 459 (2013), Zachary Mesenbourg
UIC Law Review
No abstract provided.
Waiting Is The Hardest Part: Why The Supreme Court Should Adopt The Third Circuit's Analysis Of Pay-For-Delay Settlement Agreements,
2013
Loyola University Chicago, School of Law
Waiting Is The Hardest Part: Why The Supreme Court Should Adopt The Third Circuit's Analysis Of Pay-For-Delay Settlement Agreements, Marlee P. Kutcher
Loyola University Chicago Law Journal
No abstract provided.
Faithful Agency Versus Ordinary Meaning Advocacy,
2013
Fordham University School of Law
Faithful Agency Versus Ordinary Meaning Advocacy, James J. Brudney
Faculty Scholarship
This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that …
Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy,
2013
St. Mary’s University School of Law
Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith
Faculty Articles
Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …
Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court,
2013
University of the District of Columbia
Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court, Matthew I. Fraidin
Journal Articles
On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child’s life. This Article uses insights from social psychology research to analyze the environment of dependency court and to recommend changes that will improve decisions. Research indicates that decision makers aware at the time they make a decision that they will be called upon later to explain it may engage in a systematic, deliberate decision-making …
Minding The Court: Enhancing The Decision-Making Process,
2013
University of Missouri - Kansas City, School of Law
Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben
Faculty Works
A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …
Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels,
2013
University of Missouri - Kansas City, School of Law
Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien
Faculty Works
Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …
Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013),
2013
John Marshall Law School
Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013), Kevin Hopkins
UIC Law Open Access Faculty Scholarship
As Professor Steven Lubet notes in his article, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, the ethical conduct of Supreme Court Justices has once again gained national attention. This time, however, the context for public outcry is due to actions of an in-house source who released confidential information to a member of the press concerning the voting behavior and the overall sentiments of members of the Court's minority in one of the most significant and controversial rulings of the year: NFIB v. Sebelius (the "Affordable Care Act"). Professor Lubet uses this leaking of significant …
Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators,
2013
Barry University
Ripples Against The Other Shore: The Impact Of Trauma Exposure On The Immigration Process Through Adjudicators, Kate Aschenbrenner
Faculty Scholarship
No abstract provided.
Arbitration And The Future Of Delaware's Corporate Law Franchise,
2013
Boston College Law School
Arbitration And The Future Of Delaware's Corporate Law Franchise, Brian Jm Quinn
Cardozo Journal of Conflict Resolution
On September 9, 2011, Skyworks Solutions, Inc. ("Skyworks") and Advanced Analogic Technologies Incorporation ("AATI") entered into a merger agreement. The agreement included an uncommon provision with respect to dispute resolution. In part, that provision stated, "the parties hereto agree that any and all disputes arising under or related in any way to this Agreement or the Transactions shall be resolved solely in arbitration before the Court of Chancery of the State of Delaware. " Until AATI later sought specific performance of the merger agreement via arbitration pursuant to that provision, little notice had been paid by outside observers to the …
The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade,
2013
University of Maryland Francis King Carey School of Law
The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier
Journal of Business & Technology Law
No abstract provided.
Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013),
2013
The John Marshall Law School, Chicago
Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013), Stuart K. Ford
UIC Law Open Access Faculty Scholarship
No abstract provided.
Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013),
2013
John Marshall Law School
Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe
UIC Law Open Access Faculty Scholarship
No abstract provided.
