Pliva V. Mensing And Its Implications,
2011
Georgetown University Law Center
Pliva V. Mensing And Its Implications, Brian Wolfman, Dena Feldman
Georgetown Law Faculty Publications and Other Works
The U.S. Supreme Court ruling in PLIVA Inc. v. Mensing will immunize generic drug manufacturers facing failure-to-warn claims from state-law liability, and may also have implications for preemption jurisprudence more generally, says attorney Brian Wolfman and co-author Dena Feldman in this BNA Insight. The authors analyze the ruling, and offer their views on the questions that PLIVA raises about the ongoing vitality of the presumption against preemption, the standard for determining ‘‘impossibility’’ preemption, and the propriety of deference to an agency’s views on preemption.
Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases,
2011
Benjamin N. Cardozo School of Law
Zoning Finality: Reconceptualizing Res Judicata Doctrine In Land Use Cases, Stewart E. Sterk, Kimberly J. Brunelle
Articles
Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.
Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share,
2011
Villanova University Charles Widger School of Law
Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey
Working Paper Series
Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.
Socioeconomic Rights And Theories Of Justice,
2011
University of San Diego
Socioeconomic Rights And Theories Of Justice, Jeremy Waldron
San Diego Law Review
This Article considers the relation between theories of justice - such as John Rawls's theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly …
The Regrettable Clause: United States V. Comstock And The Powers Of Congress,
2011
University of San Diego
The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell
San Diego Law Review
In this Article, I argue that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power--whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled.
American Constitutional Law,
2011
University of Tennessee College of Law
American Constitutional Law, Otis Stephens
College of Law Faculty Scholarship
No abstract provided.
Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework,
2011
University of Georgia School of Law
Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck
Scholarly Works
One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …
Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change,
2011
Benjamin N. Cardozo School of Law
Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change, Carolyn Satenberg
Cardozo Public Law, Policy & Ethics Journal
The note argues that New York's legal presumption of joint tenancy in joint bank accounts disproportionately burdens same-sex couples, leading to unfair gift and estate tax implications. It advocates for reforming New York's approach to align with the Uniform Probate Code (UPC), which better reflects depositor intent and reduces discrimination. The current system, compounded by federal policies like the Defense of Marriage Act (DOMA), exacerbates financial and emotional hardships for same-sex couples in tax and probate matters.
Succession In Family Businesses: Kinship Culture And Islamic Law Of Inheritance,
2011
Institute of Business Administration, Karachi, Pakistan
Succession In Family Businesses: Kinship Culture And Islamic Law Of Inheritance, Nasir Afghan
Business Review
Majority of research has been carried out on succession within family firms in the positivistic tradition of research and also has a very strong normative element to it. The successful research has been defined using researchers determined criterion such as firm performance, viability and harmony among the family members etc. This type of research obviously assumes an independent reality ‘out there’ ready to be collected by objective researcher. This positive stance has been apparent even in the case based research mostly conducted by practitioners. On the contrary, to carry out this research an interpretive approach was adopted. The aim of …
Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove,
2011
Texas A&M University School of Law
Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman
Faculty Scholarship
The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …
Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny,
2011
Villanova University
Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii
Legislation and Policy Brief
In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution. Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” After four years of …
Deportation Is Different,
2011
Benjamin N. Cardozo School of Law
Deportation Is Different, Peter L. Markowitz
Articles
Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, were forced to navigate the labyrinth of immigration law alone, without appointed counsel. Others were lawul permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that …
In Search Of Parity: Child Custody/Visitation And Child Support For Lesbian Couples Under “Companion” Cases Debra H. And In Re H.M.,
2011
Cornell Law School
In Search Of Parity: Child Custody/Visitation And Child Support For Lesbian Couples Under “Companion” Cases Debra H. And In Re H.M., Jason C. Beekman
Cornell Law School J.D. Student Research Papers
The United States is engaged in a national debate over whether to grant same-sex couples the rights and privileges of marriage. Supporters of marriage equality flood the media with images of jubilant same-sex couples simply wanting the chance to say their “I dos” and have the state formally recognize their shared love and commitment. The unfortunate reality is, however, that many homosexual relationships, like heterosexual relationships, dissolve. Marriage rights play as important a role at a relationship’s dissolution as they do at a relationship’s inception. This paper focuses on one such issue often left out of the public discourse over …
Conservative Eras In Supreme Court Decision-Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism,
2011
University of Wyoming
Conservative Eras In Supreme Court Decision-Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen M. Feldman
Cardozo Law Review
No abstract provided.
The Forms And Limits Of Religious Accommodation: The Case Of Rluipa,
2011
The George Washington University
The Forms And Limits Of Religious Accommodation: The Case Of Rluipa, Ira C. Lupu, Robert W. Tuttle
Cardozo Law Review
No abstract provided.
The Political (And Other) Safeguards Of Religious Freedom,
2011
University of Notre Dame
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
Cardozo Law Review
No abstract provided.
Book Review. Justin Vaisse, Neoconservatism: The Biography Of A Movement,
2011
Liberty University
Book Review. Justin Vaisse, Neoconservatism: The Biography Of A Movement, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education,
2011
Vanderbilt University
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin
Michigan Law Review
The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …
The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens,
2011
Touro Law Center
The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron
Scholarly Works
No abstract provided.
On Race, Gender, And Radical Tort Reform: A Review Of Martha Chamallas & Jennifer B. Wriggins, The Measure Of Injury: Race, Gender, And Tort Law,
2011
William & Mary Law School
On Race, Gender, And Radical Tort Reform: A Review Of Martha Chamallas & Jennifer B. Wriggins, The Measure Of Injury: Race, Gender, And Tort Law, Vincent R. Johnson
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
