Constitutional Showdowns. Eric Posner and Adrian Vermeule analyze constitutional showdowns, ask what rate and level of showdowns would be socially optimal, and ask whether socially optimal showdowns will be supplied by government institutions acting to promote their policy preferences and institutional interests.
A very big day for the Supreme Court. In Morse v. Fredrick, the Court ruled that a school could suspend a child for holding up a "Bong HiTs for Jesus" banner. (Previous post here). In Hein v. Freedom from Religion, the Court held that taxpayers lacked standing to challenged Faith Based Initiatives (previous discussions). In Wilke v. Robbins, the Court held that land owners do not have Bivens claims if the federal government harasses landowners for easements. In FEC v. Wisconsin Right to Life, the Court held that the portion of the campaign finance law which had blackout periods before elections on issue advocacy advertising was an unconstitutional restriction of speech (other). This Thursday, the Justices will deliver their last opinions of the term, including a death penalty case and the school assignment cases. (Opinions are .pdfs)
As an interesting follow-up to the excellent post about Fuck law from last year, a controversy is brewing about the article's scholarly merit. Brian Leiter issued his Most Downloaded Law Faculty Rankings and excluded Ohio State and Emory because their "presence in the top 15 was due entirely to one provocatively titled article by Christopher Fairman who teaches at Ohio State and is visiting at Emory; without Fairman’s paper, neither Ohio State nor Emory would be close to the top 15." There has been some dispute over Leiter's omission of the two faculties on that basis. Fairman weighed in on the issue with his new article Fuck and Faculty Rankings.
Modern contract law, which frames and defines our modern economy, is shaped by old and rather mundane disputes. Consider some of the seminal cases: Hadley v. Baxendale (1854); Hamer v. Sidway (1891); Carlill v. Carbolic Smoke Ball Co. (1892); Mills v. Wyman (1825). These cases, while minor in their actual factual footprint, still shape the world of contracts over a century later. (more about the cases inside)
The billionaire attorney. The King of Torts. Legendary Texas Lawyer. He is Joe Jamail. He is most famous for his record setting verdict in Texaco v. Pennzoil (which eventually made it to the US Supreme Court) in which Joe secured a $10.3 billion dollar judgment (though it is not known for sure, some speculate that Joe walked with $1 billion in attorney's fees in that case). In addition to being well known for his success, he is almost as legendary for his colorful demeanor. One such example was when he got reprimanded for his behavior in Paramount Communications Inc. v. QVC Network, Inc.. But to see him in action with your own eyes, we have video of classic Joe during a deposition he was giving. (via brainwidth).
The Hart/Devlin debate. One of the primary issues in the philosophy of law was addressed in a dispute between HLA Hart and Lord Devlin. The issue is to what extent morality can be embodied by the law. It is a debate which continues today.
Canons of Construction and the Elusive Quest for Neutral Reasoning. The Canons are a tool Courts use to interpret statutes and consist of things just as ejusdem generis, noscitur a sociis, and wxpressio unius est exclusio alterius. The usefulness of the Canons was famously called into question by Karl Llewellyn in an influential law review article. Still today, the Canons of Construction have influential support, but some people disagree with their utility. Some have even tried to apply them in other areas.
28 U.S.C 1367 was a controversial and confusing attempt by Congress to codify and address the issue of Supplemental Jurisdiction established in cases such as United Mine Workers v. Gibbs, 383 U.S. 715 (1966), Zahn v. International Paper, Co., 414 U.S. 291 (1973), and Finley v. United States, 490 U.S. 545 (1989). The Supreme Court tried to clarify some of the confusing issues regarding 1367 in a 2005 opinion. Exxon Mobil Corp v. Allapattah Servs., Inc., (2005) (Kennedy, J., writing for the Court) (Stevens, J., dissenting) (Ginsburg, J., dissenting). The question of whether the Court clarified the issue or made it more complicated remains arguably unanswered.
The 2005 Annual Survey on Choice of Law in American Courts. [pdf] The survey on Choice of Law looks at the recent controversial Supreme Court ruling dealing with conflict of laws. See Spector v. Norwegian Cruise Line, Ltd., 125 S.Ct. 2169 (2005). (Kennedy, J., writing the opinion of the Court) (Ginsburg, J., concurring) (Scalia, J., dissenting) (Thomas, J., concurring in part, dissenting in part). At issue in Spector was whether disability statutes applied to ships that depart from Texas and travel through domestic waters but fly under the flag of the Bahamas. Other 2005 Supreme Court conflict of laws cases included Small v. United States and Pasquantino v. United States.
Proposed Federal Rule of Appellate Procedure 32.1. Proposed Rule 32.1 [.pdf] is an attempt to resolve a dispute in federal court practice over the propriety of citations to unpublished opinions. It is an argument that has been played out in academic papers and Circuit Courts. Judge Richard Arnold of the 8th Circuit, writing for the majority, held that local rules which declare that unpublished opinions are not precedent are unconstitutional under Article III. Anastasoff v. United States, 223 F.3d 898, 900(8th Cir. 2000), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir.2000). Judge Alex Kozinski of the 9th Circuit disagreed, holding that nonprecedential decisions are not inconsistent with the exercise of the judicial power. Hart v. Massanari, 226 F.3d 1155, 1163 (9th Cir. 2001). The proposed Rule would resolve the circuit split, but the debate rages on.