Category: Issue 2
Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law
Kevin M. Clermont, Ziff Professor of Law, Cornell University
Familiar to all Federal Courts enthusiasts is the Erie distinction between federal actors’ obligatory application of state law and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of…
Stricken: The Need For Positive Statutory Law To Prevent Discriminatory Peremptory Strikes Of Disabled Jurors
This Note will explore the Supreme Court’s decision in Batson v. Kentucky and the gradual expansion of its protections to other categories such as gender, ethnicity, and (at the circuit level) sexual orientation. I will show that, despite recent expansions of the Batson challenge to sexual orientation in the SmithKline v. Abbott Laboratories decision, achieving…
A First Amendment Right to Corrupt your Politician
Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is well-established that the Constitution protects the right of political association, which includes contributions to candidates in return for ingratiation and access. Nonetheless,…
The Constitutional Law of Incarceration, Reconfigured
Margo Schlanger, Wade H. and Dores M. McCree Collegiate Professor of Law, University of Michigan.
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment…
Semi-confidential Settlements in Civil, Criminal, and Sexual Assault Cases
Saul Levmore, the William B. Graham Distinguished Service Professor at the University of Chicago Law School.
Frank Fagan, Associate Professor of Law, EDHEC Business School, France.
Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay…