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The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause
No full textPart I of this article identifies the litigants and the complex facts involving multiple parties, public and private, leading up to the Supreme Court’s opinion in American Legion v. AHA, as well as gives a description of the proceedings and conclusions in the lower federal courts.
Part II is an account of the High Court’s decision, splintered into six separate opinions by the seven-justice majority, concerning whether the three-part Lemon test has any future role. More importantly, it discusses how five of the seven justices interpret the Establishment Clause by reference to historical practices at the nation’s founding and early republic. The concurring opinions by the two center-left justices, Breyer and Kagan, as well as the opinions concurring in the judgment by the two conservative justices, Thomas and Gorsuch, are essential to understanding that Lemon is being supplanted by an historical interpretive test. What counts as controlling history, however, is to be worked out in future cases.
Finally, Part III raises several lingering concerns about the decision in American Legion v. AHA
Forgotten Heroes: The Unacceptable Results of Military Administrative Separations
Get PDFThe United States Military is charged with protecting the interests of the United States against foreign actors that seek to undermine our safety, values, and standing as the world\u27s leading democratic power. The performance of this duty is often carried out without a ripple in the fabric of the average citizens\u27 daily life. The adage no news is good news describes the way the civilian population thinks about how the military functions. However, the civilian population of the United States should be aware of situations where service-members are not treated fairly by the military\u27s processes
Foundational and Contemporary Court Confidentiality
Get PDFAn integrated confidentiality system now pervades American dispute resolution. This system was created over the course of decades by legislatures, rule makers, and courts. Proponents of confidentiality have long justified expansive secrecy by claiming that the benefits of withholding litigation information outweigh any potential public harm. Recent evidence undermines this premise. In some of the most important public-harms cases of the past two decades, critical health-and-safety information was kept secret in court files. People died or were injured in the meantime. It has also become apparent that consolidating cases in multi-district litigation has the potential to accelerate and homogenize confidentiality nationally. The recent evidence of these trends is concerning and would prompt any conscientious observer to reconsider the status quo
Disentangling Conflicts Of Laws In EU And Member States’ Investment Agreements
Get PDFThe European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled 47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon Treaty in 2009, the EU has negotiated international investment agreements with economies such as Australia, Canada, China, Vietnam, Singapore, and the United States. Among these agreements, the Energy Charter Treaty (“ECT”) is both an intra-EU and extra-EU investment agreement, to which both the EU and Member States are parties. It is therefore of critical importance to establish a predictable legal framework governing investments within and outside of the EU
The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years after Apprendi
Get PDFThis Article reflects on the author\u27s professional experience and intellectual evolution in relation to federal sentencing policy and the Federal Sentencing Guidelines before and after the Supreme Court\u27s decision in Apprendi v. New Jersey.
The account begins with the author\u27s first encounters with the Guidelines when he was a zealous Assistant U.S. Attorney, continues through his transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and concludes with the author pessimistic about the prospects of meaningful federal sentencing reform.
The utility, if any, of these musings will lie partly in the fact that the author has been deeply involved with federal sentencing policy and practice for thirty years but mostly in the fact that he has felt obliged to change his mind as events and experience challenged his previous convictions. Some reconstruction of the evolution of the author\u27s thinking as the Guidelines arose, failed, and died - but then achieved an enduring afterlife as law that lingers even though it cannot bind-may be of modest use when the time finally comes to build something truly new
NEW EDITION OF PSYCHOLOGY FOR LAWYERS
Get PDFThis post describes the second edition of Jennifer Robbennolt and Jean Sternlight’s book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. Based on the latest research, it provides insights about perception, memory, judgment, decision making, emotion, persuasion and influence, communication, and the psychology of justice. It applies these insights tasks to daily tasks of lawyering, including interviewing, negotiating, counseling, and conducting discovery
ANNA HOWARD’S NEW BOOK EXAMINES WHY BUSINESSES DON’T USE MEDIATION – AND OTHER ISSUES
Get PDFAnna Howard‘s book, EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes, provides valuable insights about business disputing. Her study is based on 21 semi-structured interviews of senior in-house counsel in multi-national companies operating in Europe. It shows that lawyers think about disputes from the outset of problems, not simply at the later stages of cases. The study pays particular attention to why businesses don’t use mediation, highlighting the impact of internal organizational dynamics
Tough Conversations about Race: Let the Book Start the Discussion
Get PDFDiscussing racism is difficult, both for those who have experienced it and those who are seeking to understand its effect on others. The authors suggest that book discussion groups can help lawyers and students to have these difficult conversations