Courts Commons^™

Putting Buck V. Bell In Scientific And Historical Context: A Response To Victoria Nourse , Edward J. Larson

Pepperdine Law Review

In this article written for a law-review symposium in response to a presentation on the infamous 1927 U.S. Supreme Court opinion in Buck v. Bell, Edward J. Larson argues that, at the time that the case was decided, eugenics was on the incline, not the decline. In the 1920s, the American scientific and medical community broadly backed eugenic remedies for various forms of mental illness and retardation. Legislatures, lawyers, and jurists took their cue from this scientific and medical consensus. Absent any question that the statute at issue in Buck v. Bell was validly passed by the Virginia legislature or …

Buck V. Bell: A Constitutional Tragedy From A Lost World, Victoria Nourse

Pepperdine Law Review

The article focuses on the U.S. Supreme Court case Buck v. Bell, which dealt with the forced sterilization of people deemed unfit, such as intellectually disabled or mentally retarded individuals. Topics include the enforceability of unconstitutional judicial decisions, eugenic sterilization, and the application of substantive due process.

A Reluctant Apology For Plessy: A Response To Akhil Amar, Barry P. Mcdonald

Pepperdine Law Review

A response to the article "Plessy v. Ferguson and the Anti-Canon," by Akhil Amar, published in the November 2011 issue of the "Pepperdine Law Review," is presented. Topics include an examination of Justice Henry Billings Brown's decision in the case, the constitutionality of segregating U.S. citizens by race, and the impact of public opinion on U.S. Supreme Court decisions.

Plessy V. Ferguson And The Anti-Canon, Akhil Reed Amar

Pepperdine Law Review

The article focuses on the U.S. Supreme Court case Plessy v. Ferguson, which dealt with the constitutionality of racial segregation in the U.S. Topics include the application of precedent in controversial U.S. Supreme Court cases, when the U.S. Constitution can overrule a court decision, and dissenting judicial opinions.

Coming To Terms With Dred Scott: A Response To Daniel A. Farber, Paul Finkelman

Pepperdine Law Review

When thinking about Dred Scott, the issue is not how do we “rehabilitate” the opinion. The goal of scholarship here is to understand the opinion, place it in the context of its own time, and explain its enduring significance. After that, we may praise or damn it, and rehabilitate it or condemn it. No one today likes the Dred Scott opinion or the result. But, this article argues that Professor Daniel A. Farber is so incensed by the opinion that he vastly overstates its historical significance including incorrectly blaming Chief Justice Taney for causing the Civil War. This article rejects …

A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber

Pepperdine Law Review

This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in …

Anti-Canonical Considerations, Edward J. Larson

Pepperdine Law Review

No abstract provided.

The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti

Legislation and Policy Brief

The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …

Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Christopher J. Paolella, Anthony J. Bellia

Court Briefs

No. 10-1491
Esther Kiobel v. Royal Dutch Petroleum Co.

On Writ of Certiorari to the United States Cour of Appeals for the Second Circuit

From the Summary of Argument

This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether …

Common Law Judicial Decision Making: The Case Of The New York Court Of Appeals 1900-1941, Mark P. Gergen, Kevin M. Quinn

Buffalo Law Review

No abstract provided.

An Empirical Analysis Of Conservative, Liberal, And Other "Biases" In The United States Courts Of Appeals For The Eighth & Ninth Circuits, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

The Propriety Of Jury Questioning: A Remedy For Perceived Harmless Error, Laurie Forbes Neff

Pepperdine Law Review

No abstract provided.

Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet

Pepperdine Law Review

No abstract provided.

Testimony For Sale: The Law And Ethics Of Snitches And Experts, George C. Harris

Pepperdine Law Review

No abstract provided.

The Absentee Post-Conviction Constitutional Safeguards – People V. Zowaski, Danielle M. Hansen

Touro Law Review

No abstract provided.

The Legacy Of Rux V. Republic Of Sudan And The Future Of The Judicial War On Terror, Chad G. Marzen

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal battles of the families of U.S. sailors killed in the 2000 U.S.S. Cole bombing, focusing on their efforts to hold Sudan liable under the Foreign Sovereign Immunity Act (FSIA) and the state sponsor of terrorism exception. It explores the procedural history of the Rux and Kumar cases, highlighting the complexities of applying the FSIA and the impact of legislative changes, such as the National Defense Authorization Act (NDAA) 2008, on terrorism-related litigation. The analysis underscores the challenges in balancing judicial authority with legislative intent, particularly in cases involving retroactivity and res judicata.

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

Stare Decisis In The Inferior Courts Of The United States, Joseph Mead

Law Faculty Articles and Essays

While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.

Building The Federal Judiciary (Literally And Legally): The Monuments Of Chief Justices Taft, Warren And Rehnquist, Judith Resnik

Indiana Law Journal

The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of …