En-Gendering Economic Inequality,
2016
University of Baltimore School of Law
En-Gendering Economic Inequality, Michele E. Gilman
All Faculty Scholarship
We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …
Speech-Facilitating Conduct,
2016
University of Richmond
Speech-Facilitating Conduct, Jud Campbell
Law Faculty Publications
Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …
Three Supreme Court “Failures” And A Story Of Supreme Court Success,
2016
University of Richmond
Three Supreme Court “Failures” And A Story Of Supreme Court Success, Corinna Barrett Lain
Law Faculty Publications
Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures—cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases—Plessy and Buck—the Court’s ruling reflected the …
Commentary For Price Waterhouse V. Hopkins,
2016
University of Richmond
Commentary For Price Waterhouse V. Hopkins, Dale Margolin Cecka
Law Faculty Publications
Price Waterhouse is primarily known for its addressing of sex stereotyping. The word “stereotype” appears ten times in the various opinions of Price Waterhouse , but the Court did not clarify what kind of stereotype-influenced behavior and workplace environment is illegal. The Court had in the record extensive expert testimony from Dr. Susan Fiske about stereotyping, but it dismissed that testimony as mere “icing on the cake” and it was not integral to the holding. The Court concluded summarily that partners reacted “negatively to [Hopkins’s] personality because she is a woman.” It alluded to the “possible ways of proving that …
Confirming Circuit Judges In A Presidential Election Year,
2016
University of Richmond
Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias
Law Faculty Publications
Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …
The Return Of Coverture,
2016
University of Richmond
The Return Of Coverture, Allison Anna Tait
Law Faculty Publications
Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …
"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World,
2016
University of Washington School of Law
"The More Things Change . . .": New Moves For Legitimizing Racial Discrimination In A "Post-Race" World, Mario L. Barnes
Articles
No abstract provided.
Bookends: Justice Stevens And Justice Scalia,
2016
Washington University in St. Louis School of Law
Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian
Scholarship@WashULaw
The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …
Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions,
2016
Duke Law School
Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg
Faculty Scholarship
The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …
Confusing Patent Eligibility,
2016
Southern Methodist University, Dedman School of Law
Confusing Patent Eligibility, David O. Taylor
Faculty Journal Articles and Book Chapters
Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces …
From Ripe To Rotten: An Examination Of The Continued Utility Of The Ripeness Doctrine In Light Of The Modern Standing Doctrine,
2016
University of Georgia School of Law
From Ripe To Rotten: An Examination Of The Continued Utility Of The Ripeness Doctrine In Light Of The Modern Standing Doctrine, Michael A. Delgaudio
Georgia Law Review
First year law students are generally taught that the justiciability doctrines of standing and ripeness perform distinct functions that work together to help courts determine whether an Article III "case or controversy" exists in particular suits. The standing doctrine, it is said, assists courts in this inquiry by determining who can bring suit, whereas the ripeness doctrine assists them by determining when someone can bring suit. This theoretical distinction in the doctrines' functions is based on the original forms the standing and ripeness doctrines took. Over the course of the past century, however, the Supreme Court has altered the standing …
Let My People Grow: Putting A Number On Strict Scrutiny In The Wake Of Holt V. Hobbs,
2016
University of Georgia School of Law
Let My People Grow: Putting A Number On Strict Scrutiny In The Wake Of Holt V. Hobbs, Dana A. Schwartzenfeld
Georgia Law Review
Beards have always played an important role in human
society, especially in the religious context. One man's
beard even got him in front of the United States Supreme
Court. In Holt v. Hobbs, the Court decided that a prisoner
had a constitutional right to grow a one-half-inch beard
for religious purposes. In making the decision, the Court
made clear that the prisoner's religious interest far
outweighed any security threat that such a short beard
could pose to the prison. The Court declined to go any
further, however, in clarifying the beard length at which
the scales would begin to tip …
Talking Textualism, Practicing Pragmatism: Rethinking The Supreme Court's Approach To Statutory Interpretation,
2016
Pepperdine University School of Law
Talking Textualism, Practicing Pragmatism: Rethinking The Supreme Court's Approach To Statutory Interpretation, Robert J. Pushaw Jr.
Georgia Law Review
The Supreme Court's general approach to statutory
interpretation is analytically incoherent. On the one
hand, the Court has expressly endorsed "textualism":
enforcing the plain meaning (i.e., ordinary usage) of a
statute's words, and therefore refusing to consider non-
textual evidence unless the language is unclear. On the
other hand, the Court has implicitly applied
'oragmatism"-reaching the best practical result after
examining not only a statute's text but also Congress's
intent (as revealed by legislative history), its overall
purposes, precedent, and policy.
The two cases upholding the Affordable Care Act (ACA)
illustrate this practice of purporting to follow textualism,
but then …
Juvenile Sentencing Reform In A Constitutional Framework,
2016
Columbia Law School
Juvenile Sentencing Reform In A Constitutional Framework, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg
Faculty Scholarship
In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. Roper v Simmons in 2005 prohibited the imposition of the death penalty for a crime committed by a juvenile. Five years later, Graham v. Florida held that no juvenile could be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense. Then in 2012, Miller v. Alabama struck down statutes that required courts to sentence …
Maximinimalism,
2016
Columbia Law School
Maximinimalism, Jamal Greene
Faculty Scholarship
When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist. Although Chief Justice Roberts himself resisted this label, he fairly inspired it by advocating for more consensus among his colleagues and by famously recounting to a Georgetown Law Commencement audience his view that “[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more.” The suggestion that the Court decide significant issues one case at a time recalls the work of Cass Sunstein, the American academy’s most articulate …
The Institutionalization Of Supreme Court Confirmation Hearings,
2016
University of Massachusetts - Amherst
The Institutionalization Of Supreme Court Confirmation Hearings, Paul M. Collins Jr., Lori A. Ringhand
Scholarly Works
This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role …
The Age Of Scalia,
2016
Columbia Law School
The Age Of Scalia, Jamal Greene
Faculty Scholarship
During periods of apparent social dissolution the traditionalists, the true believers, the defenders of the status quo, turn to the past with an interest quite as obsessive as that of the radicals, the reformers, and the revolutionaries. What the true believers look for, and find, is proof that, once upon a time, things were as we should like them to be: the laws of economics worked; the streams of legal doctrine ran sweet and pure; order, tranquility, and harmony governed our society. Their message is: turn back and all will be well.
Recent Cases: Eeoc V. Abercrombie & Fitch Stores, Inc.: Religious Accommodation In The Workplace,
2016
Boston University School of Law
Recent Cases: Eeoc V. Abercrombie & Fitch Stores, Inc.: Religious Accommodation In The Workplace, Elizabeth King
Faculty Scholarship
In EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff, Samantha Elauf, was rejected from a sales clerk position because her headscarf clashed with Abercrombie & Fitch’s employee dress code.1 This code, Abercrombie’s “Look Policy,” required all employees to dress in a “classic East Coast collegiate style” and prohibited “caps.”2 However, Elauf, a practicing Muslim, wore a headscarf (or “hijab”) as a representation and obligation of her religion.3 After Abercrombie rejected her employment application, the Equal Employment Opportunity Commission (“EEOC”) sued the company on Elauf’s behalf, alleging a Title VII violation for failure to accommodate a …
Transparency And The Supreme Court—Can Employers Refuse To Disclose How Much They Pay For Health Care?,
2015
University of Michigan Law School
Transparency And The Supreme Court—Can Employers Refuse To Disclose How Much They Pay For Health Care?, Nicholas Bagley, Christopher Koller
Articles
For decades, the prices that hospitals and physicians charge private insurers have been treated as trade secrets. Even though inflated prices are an enormous reason why health care is so much more expensive in the United States than in other countries, we have only a hazy picture of what those prices actually are.
Extralegal Supreme Court Policy-Making,
2015
William & Mary Law School
Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno
William & Mary Bill of Rights Journal
The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such as whether …
