Judicial Consensus and Judicial Constraint
David Orentlicher (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Judicial Consensus (31 pages) on SSRN. Here is the abstract: Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least...
Allen v. Cooper: When is a Precedent “Extended”?
In Allen v. Cooper, decided Monday, the Supreme Court held unanimously (with some concurrences) that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of copyright infringement. The opinion relied heavily on the Court’s...
Getting It Right on Preemption: Kansas v. Garcia
In the category of getting small things right, last week’s Supreme Court decision in Kansas v. Garcia is a good step toward getting preemption doctrine right (or at least not making it worse). The question was whether the federal Immigration Reform and Control...