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Abstract:
An evaluation of the limitations of the Supreme Court's Stenberg v. Carhart decision.

Gonzales v. Carhart, Abortion, Supreme Court

Abstract:
Indiana imposes certain eligibility qualifications on candidates for public office, and provides a statutory cause of action for losing candidates in an election to challenge the results based on the eligibility of the winner. Following the 2007 mayoral election in Terre Haute, Ind., the losing candidate argued that the winner fell afoul of the federal Hatch Act, which is an explicit disqualification under Indiana law.

The trial court concluded that the winning candidate did violate the Hatch Act, but through an interesting feat of jurisprudential jujitsu held that the disqualification didn't matter because the election was over. The court reached the paradoxical (in fact absurd) conclusion that a legislatively-created post-election contest procedure cannot be used after an election, using reasoning that, consistently-applied, would also gut Indiana's provision for a losing candidate from requesting a recount after the election.

This is a draft of an essay examining what the court did wrong on both the federal and state law questions and what it should have done instead.

Hatch Act, elections, Indiana law, statutory construction, textualism, de minimis

Abstract:
In Mediating Norms & Identities: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, Professor Waters urges Federal courts in general, and the Supreme Court of the United States in particular, to participate in an ongoing colloquy between American courts and the courts of other countries. By so participating, suggests Waters, our courts can act not only as norm importers - that is, incorporating foreign precedents into domestic jurisprudence, as in Lawrence v. Texas and Roper v. Simmons - but also as norm exporters, to which other courts in other countries will look when interpreting their own laws and constitutions.

It is not universally agreed that this picture is as rosy as Waters paints it; indeed, many regard it as decidedly dystopian, and fear that Josh Hsu is correct when he claims that historians [may] likely look back on the era of Aktins, Roper, and Lawrence as a turning point in the Court's decision-making process.

While this essay closely scrutinizes Mediating Norms, I do not so much engage it on its own terms, but rather, at the level of what I perceive to be its animating premises: that is, to critique the conceptions of universal applicability and the one law that underlie the transnationalist paradigm of using comparative materials to shed light on purely domestic law. Herein, then, I approach the issue of foreign law through the lens of a skeptical textualist reading Mediating Norms. In doing so, I hope to clarify the parameters of the debate and to restate, formalize, and develop various criticisms propounded by skeptics of foreign law, in particular, those offered in various speeches by Justice Scalia.

constitutional law, foreign law, comparative law, comparative constitutionalism, originalism, textualism, formalism, judicial dialogue

Abstract:
This essay responding to the Supreme Court's recent decision in Massachusetts et al v. Environmental Protection Agency seeks to figure out how and where (or perhaps more to the point, if) this case fits into the framework of the Supreme Court's post-Lujan standing jurisprudence. I tackle the question of whether the plaintiffs had standing from the perspective of a road less traveled: while most commentary has tended to focus on the injury prong, I stipulate injury and focus on whether the relief sought can redress that injury, Lujan's third prong. I discuss the nine key standing cases decided between Lujan v. Defenders of Wildlife and Mass. v. EPA, and conclude that none of the post-Lujan cases have accepted so tenuous and speculative an understanding of "redress" as the court did in this case, making this case the low water mark of recent standing jurisprudence.

Massachusetts v. EPA, Mass. v. EPA, Supreme Court, standing, redressability, jurisdiction, environmental law

Abstract:
A short paper discussing the landscape of contributory infringement liabilities for ISPs under OCILLA as of December 2006.

Intellectual property, DMCA, OCILLA