American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

This dissertation investigates the effects of amendments to Ontario’s Rules of Civil Procedure that came into effect on January 1, 2010 (the “2010 Amendments”) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (“Hryniak”). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniak’s call for a “culture shift” and the 2010 Amendments’ enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a “culture shift” is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada.

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Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s

JOHN H. PATTON Patton Martin & Sullivan LLP 6600 Koll Center Parkway, Suite 250 Pleasanton, CA 94566 Telephone: (925) 600-1800 Facsimile: (925) 600-1802 E-mail: john@patton martinsullivan.com R. S. RADFORD Counsel of Record LUKE A. WAKE Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, California 95834 Telephone: (916) 419-7111 Facsimile: (916) 419-7747 E-mail: rsr@pacificlegal.org E-mail: lw@pacificlegal.org

/pdf/petition-for-a-writ-of-certiorari-1v3j27vust.pdf

Petition for a Writ of Certiorari

Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

The term “corporation” does not appear anywhere in the United States Constitution, yet the United States Supreme Court has held that corporations are entitled to claim an extensive array of constitutional rights. The justifications for these rights have developed from the many different conceptions of the corporation as a legal, moral, economic, social, and political actor. In particular, the constitutional dimension of the corporation’s personhood is an extension of its legal personhood. Therefore, the fundamental legal theories of the corporate person, i.e., the artificial person, aggregate, and real entity theories, have had a role in supporting the extension of constitutional rights to corporations. The moral and sociological dimensions of the corporate person have also been important. In determining the scope of corporate constitutional rights, the Supreme Court has considered the actual and normative roles and purposes of corporations in our pluralistic and democratic society. Considerations of corporate power, both economic and political, have contributed as well to the debate over which constitutional rights appropriately apply to corporations.

Constitutional Dimensions of the Corporate Person: Corporate Free Speech

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

A Long, Strange Trip: My First Year Challenging the Constitutionality of Obamacare

Commentators often fall in love with the object of their analysis and thereby lose perspective. After being immersed for so long in the minutia of a given topic, and investing so much in a particular narrative or thesis, it becomes difficult not to overstate the importance of the subject matter. In recognizing this bias with respect to Medellin v. Texas, I hope to avoid it. Having said that, I don’t believe it’s an exaggeration to call this the most intellectually interesting case of the term. It is also probably the one with the broadest implications for American jurisprudence, coming at the increasingly topical intersection of international and constitutional law. Medellin presented the Court with a law school exam of a case, combining questions of treaty interpretation and application, federalism, separation of powers, and criminal procedure. It forced the justices to grapple with tensions between international and domestic law (and what that means for the Constitution’s Supremacy Clause), federal and state government, and the president and three separate institutions: Congress, the Supreme Court, and — in what then-Texas Solicitor General Ted Cruz (who argued the case) has called a ‘‘Mobius twist’’ — state courts. In short, this remarkable case raised issues touching on every axis of governmental structure, checks and balances, and the design of political institutions. This article presents the lead-up to the case, analyzes the opinion and its aftermath, and evaluates Medelli´n’s implications for international law and executive authority. I begin in Part I with the factual and procedural background to the case, the legal developments that led to this intersection of international and constitutional law, and the course of litigation before the Supreme Court. In Part II, I parse the Medelli´n opinion, concentrating of course on Chief Justice John Roberts’s opinion for the Court, but also noting salient points from Justice John Paul Stevens’s concurrence and Justice Stephen Breyer’s dissent. Part III details subsequent legal action and Medelli´n’s execution. In Part IV, I look at the future of international law and executive power in U.S. courts and propose how a president could act in similar circumstances if an issue like this ever arises again.

Medellin v. Texas and the Ultimate Law School Exam

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court's decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not "real" people. While it's true that corporations aren't human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren't people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

So What If Corporations Aren't People?

This essay argues that the Patient Protection and Affordable Care Act exceeds Congress’s authority to regulate interstate commerce and its taxing power, and infringes on state prerogatives. The lawsuits that have been filed by states and individuals arguing these points raise serious legal issues, not the least of which is whether there are any constitutional limits remaining on government power. Because the new law is unprecedented—in both its regulatory scope and its expansion of federal authority—it is difficult to predict how courts will react. However, a holding that these measures were in fact constitutional would fundamentally alter the relationship of the federal government to the states and the people, as there would seem to be no constitutional limits on federal power.

pro & con State Suits Against Health Reform Are Well Grounded In Law—And Pose Serious Challenges

In a year when we mark the 50th anniversary of Martin Luther King’s “I Have a Dream” speech, civil rights leaders and elected officials bemoan what they consider to be a huge setback in the fight for racial equality: the Supreme Court’s recent decision in Shelby County v. Holder. You could thus be forgiven for thinking that Shelby County means that racial minorities are now disenfranchised. But all the court did was ease out an emergency provision enacted in 1965 to provide temporary federal oversight of state elections based on that era’s racial disparities. While politicians and pundits irresponsibly liken the ruling to sanctioning Bull Connor’s dogs, it actually shows the strength of our protections for voting rights.What the Supreme Court struck down was Section 4(b) of the Voting Rights Act, which is the “coverage formula” used to apply Section 5, a provision requiring certain jurisdictions to “preclear” with the federal government any changes in election regulations. The Court found that this formula was unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.Just as the Court was correct in 1966 to approve the constitutional deviation that preclearance represents as an “uncommon” remedy to the “exceptional conditions” in the Jim Crow South, it was correct now in restoring the constitutional order. As Justice Thomas wrote in another voting rights case four years ago, disabling Section 5 “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”While Justice Ginsburg compared getting rid of Section 5 to “throwing away your umbrella in a rainstorm because you are not getting wet,” it’s actually more like stopping chemotherapy when the cancer is eradicated. There’s more to be done to achieve racial harmony in America, to be sure, but the best way to honor the heroes of 1963 is to build on their triumphs rather than pretend that we still live in their time.

Ilya Shapiro

Papers

A Long, Strange Trip: My First Year Challenging the Constitutionality of Obamacare

Medellin v. Texas and the Ultimate Law School Exam

So What If Corporations Aren't People?

pro & con State Suits Against Health Reform Are Well Grounded In Law—And Pose Serious Challenges

Shelby County and the Vindication of Martin Luther King's Dream