Epic Considerations: The Speech That The Supreme Court Would Not Hear In Snyder V. Phelps,
2011
Georgetown University Law Center
Epic Considerations: The Speech That The Supreme Court Would Not Hear In Snyder V. Phelps, Jeffrey Shulman
Georgetown Law Faculty Publications and Other Works
In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards. For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.” On grounds that we …
Federal Law In State Court: Judicial Federalism Through A Relational Lens,
2011
University of Miami School of Law
Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland
Articles
Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's preclearance requirements. …
H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?,
2011
Georgetown Law Center
H. L. A. Hart’S Moderate Indeterminacy Thesis Reconsidered: In Between Scylla And Charybdis?, Imer Flores
Georgetown Law Faculty Publications and Other Works
In this article, in the context of the fiftieth anniversary of H. L. A. Hart’s The Concept of Law, The author reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, the author intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases,” which resembles Aristotle’s “doctrine of the mean”; second, to criticize his thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; …
The Post-Citizens United Fantasy-Land,
2011
Georgetown University Law Center
The Post-Citizens United Fantasy-Land, Roy A. Schotland
Georgetown Law Faculty Publications and Other Works
First, a bouquet for the illuminating facts presented by Professors Wert, Gaddie, and Bullock. They make dramatically clear how minuscule independent spending by corporate PACs has been (that is, those PACs’ direct spending as distinct from support by those PACs or their corporate sponsors for spending by intermediaries like the Chamber of Commerce). Their showing is borne out by experience this year: corporate support for campaigns is almost all hidden, flowing through intermediaries, which is why getting effective disclosure is more important than ever, as the Court clearly recognizes (We probably owe much to Justice Kennedy for the fact that …
Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports,
2011
Georgetown University Law Center
Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to …
The Case For The Repeal Amendment,
2011
Georgetown University Law Center
The Case For The Repeal Amendment, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …
Preface,
2011
University of Richmond School of Law
Creating Bright-Line Rules For Tribal Court Jurisdiction Over Non-Indians: The Case Of Trespass To Real Property,
2011
University of North Dakota
Creating Bright-Line Rules For Tribal Court Jurisdiction Over Non-Indians: The Case Of Trespass To Real Property, Grant Christensen
American Indian Law Review
The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties - tribal, state, and federal - are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed to federal courts. I offer this piece to propose a new and novel solution - that tribal courts, through a piecemeal process, be extended absolute civil jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most …
This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation,
2011
University of Oklahoma College of Law
This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation, Jered T. Davidson
American Indian Law Review
No abstract provided.
Defending The "Indefensible": Replacing Ethnocentrism With A Native American Cultural Defense,
2011
University of Oklahoma College of Law
Defending The "Indefensible": Replacing Ethnocentrism With A Native American Cultural Defense, Megan H. Dearth
American Indian Law Review
No abstract provided.
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence,
2011
Duke Law School
Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher
Faculty Scholarship
No abstract provided.
The Conflicted Assumptions Of Modern Constitutional Law,
2011
Duke Law School
The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell
Faculty Scholarship
Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty
Responses To The Ten Questions,
2011
Duke Law School
Responses To The Ten Questions, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
Reverse Incorporation Of State Constitutional Law,
2011
Duke Law School
Reverse Incorporation Of State Constitutional Law, Joseph Blocher
Faculty Scholarship
State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …
What State Constitutional Law Can Tell Us About The Federal Constitution,
2011
Duke Law School
What State Constitutional Law Can Tell Us About The Federal Constitution, Joseph Blocher
Faculty Scholarship
Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to …
Who’S Afraid Of The Federal Circuit?,
2011
Duke Law School
Who’S Afraid Of The Federal Circuit?, Arti K. Rai
Faculty Scholarship
In this brief Essay, Professor Rai responds to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit …
Lawyering Decisions—October 2009 Term,
2011
Touro Law Center
Lawyering Decisions—October 2009 Term, Eileen Kaufman
Scholarly Works
No abstract provided.
Ineffective-Assistance-Of-Counsel Blues: Navigating The Muddy Waters Of Georgia Law After 2010 State Supreme Court Decisions,
2011
University of Georgia School of Law
Ineffective-Assistance-Of-Counsel Blues: Navigating The Muddy Waters Of Georgia Law After 2010 State Supreme Court Decisions, Ryan C. Tuck
Georgia Law Review
The constitutional right to counsel is a guarantee of
effective counsel, but vindicating this right through an
ineffective assistance of counsel challenge (IC) is difficult
for most defendants, especially indigent ones. In Georgia,
the difficulty of arguing a successful IAC claim is
heightened by strange rules for when such claims can be
raised. Georgia long has adhered to an IAC timing
approach that few other jurisdictions still follow and the
Supreme Court has rejected, threatening waiver if
defendants do not argue IAC as early as practicable.
When appellate counsel is new, this opportunity is the
direct appeal. In contrast, most …
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis,
2011
Washington & Lee University School of Law
The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer
Georgia Law Review
The Third Branch of our federal government has
traditionally been viewed as the least of the three in
terms of the scope of its power and authority. This
view finds validation when one considers the
extensive authority that Congress has been permitted
to exercise over the Federal Judiciary. From the
beginning, Congress has understood itself to possess
the authority to limit the jurisdiction of inferior
federal courts. The Supreme Court has acquiesced to
this understanding of congressional authority
without much thought or explanation.
It may be possible, however, to imagine a more
robust vision of the Judicial Power through closer …
Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study,
2011
Fordham University School of Law
Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno
Faculty Scholarship
This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …
