New Pleading, New Discovery,
2010
William & Mary School of Law
New Pleading, New Discovery, Scott Dodson
Michigan Law Review
Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …
The Functions Of Ethical Originalism,
2010
University of Michigan Law School
The Functions Of Ethical Originalism, Richard A. Primus
Articles
Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …
The Future Of Disparate Impact,
2010
University of Michigan Law School
The Future Of Disparate Impact, Richard A. Primus
Articles
The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power,
2010
University of Baltimore School of Law
Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay
All Faculty Scholarship
This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the …
A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change,
2010
University of Richmond School of Law
A Popular Approach To Popular Constitutionalism: The First Amendment, Civic Education, And Constitutional Change, Thomas G. Donnelly
Law Faculty Publications
Popular constitutionalists fear that our constitutional culture is becoming less popular. At the same time, these scholars often ignore key popular sources of constitutional meaning. Their accounts focus, instead, on the elite conflicts that give rise to constitutional change, particularly the ongoing debates between elected officials, movement leaders, and the Supreme Court. Although these studies are essential to understanding the pathways for promoting non-Article V constitutional change, they are "popular" only in the sense that they focus on non-judicial actors and politically salient controversies. The constitutional life of the average citizen is generally ignored. If legal scholars are serious about …
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists,
2010
William & Mary Law School
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne
Faculty Publications
No abstract provided.
In Defense Of Appearances: What Caperton V. Massey Should Have Said,
2010
Boston University School of Law
In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman
Faculty Scholarship
In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …
The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991,
2010
Boston University School of Law
The Causation Standard In Federal Employment Law: Gross V. Fbl Financial Services, Inc., And The Unfulfilled Promise Of The Civil Rights Act Of 1991, Michael C. Harper
Faculty Scholarship
This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, …
Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United,
2010
University of Georgia School of Law
Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker
Scholarly Works
No abstract provided.
School Choice And The Challenges That Remain: A Comment On Richard D. Komer's "School Choice And State Constitutions' Religion Clauses",
2010
Notre Dame Law School
School Choice And The Challenges That Remain: A Comment On Richard D. Komer's "School Choice And State Constitutions' Religion Clauses", Richard W. Garnett
Journal Articles
Richard Komer’s paper helpfully and carefully shows that, after the Supreme Court’s 2002 ruling in Zelman v. Simmons-Harris, a formidable obstacle to choice-based educational reform has been removed, and also that other, no-less-formidable obstacles remain, in the form of anti-aid provisions contained in various states’ own constitutions. This brief, appreciative Comment notes, first, that uncertainties remain about the implementation and interpretation of Zelman, and even—considering the possibility of new appointments to the Court—the decision’s fate. Next, and moving beyond the Court’s First Amendment doctrine, this Comment suggests that the effort to implement choice-based educational reform is, and will remain, as …
Law, Facts, And Power,
2010
Southern Methodist University, Dedman School of Law
Law, Facts, And Power, Elizabeth G. Thornburg
Faculty Journal Articles and Book Chapters
The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …
Too Much Of A Good Thing: Campaign Speech After Citizens United,
2010
Saint Louis University School of Law
Too Much Of A Good Thing: Campaign Speech After Citizens United, Molly J. Walker Wilson
All Faculty Scholarship
In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for “electioneering communication,” political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund …
Behavioral Decision Theory And Implications For The Supreme Court’S Campaign Finance Jurisprudence,
2010
Saint Louis University School of Law
Behavioral Decision Theory And Implications For The Supreme Court’S Campaign Finance Jurisprudence, Molly J. Walker Wilson
All Faculty Scholarship
America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as “speech” and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or …
