Emory Law Journal

Volume 61Issue 4
The 2011 Randolph W. Thrower Symposium, Judging Politics: Judges as Political Actors, Candidates, and Arbiters of the Political
Thrower Symposium Articles

Balls and Strikes

Charles Fried | 61 Emory L.J. 641 (2012)

John Roberts has been both praised and scorned for the metaphor he presented to the Senate Judiciary Committee at the hearing on his confirmation to be Chief Justice of the United States: "[I]t's my job to call balls and strikes." It was an arresting use of language because, unlike so many metaphors that litter the discourse in and about the law—think of “sweeps too broadly” or “paints with a broad brush”—it is not so timeworn that, as George Orwell has noted, the original meaning has drained out of it and we are left only with a cliché, a ponderous way of saying something that could be said more directly.

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The Legal Mobilization Dilemma

Douglas NeJaime | 61 Emory L.J. 663 (2012)

Perry v. Brown, the federal lawsuit challenging Proposition 8—the California state constitutional amendment prohibiting marriage for same-sex couples—was filed in 2009. At that time, it presented sweeping federal constitutional claims for marriage equality and sought to ultimately put those claims before the U.S. Supreme Court. The suit defied the strategic vision of lawyers at the leading lesbian, gay, bisexual, and transgender (LGBT) legal organizations—Lambda Legal, the American Civil Liberties Union (ACLU), the National Center for Lesbian Rights (NCLR), and Gay & Lesbian Advocates & Defenders (GLAD).

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Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State, and Local Laws

Lee Epstein, Andrew D. Martin | 61 Emory L.J. 737 (2012)

Is the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional and confine the analysis to the 1969–2009 Terms, the answer is no. The Roberts Justices, just as their immediate predecessors, are neither uniform activists nor committed restraintists. Rather, the Justices' votes to strike (and uphold) statutes seem to reflect their political preferences toward the policy content of the law, and not an underlying preference for restraint (or activism).

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The Several Meanings of “Politics” in Judicial Politics Studies: Why “Ideological Influence” is not “Partisanship”

Brian Z. Tamanaha | 61 Emory L.J. 759 (2012)

The Several Meanings of “Politics” in Judicial Politics Studies: Why “Ideological Influence” is not “Partisanship”

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Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law

Richard L. Hasen | 61 Emory L.J. 779 (2012)

Without doubt, the Supreme Court's most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC. This 5–4 decision, striking down corporate campaign spending limits against a First Amendment challenge and overruling two earlier Supreme Court precedents, has been the subject not only of sustained academic commentary and editorial criticism but also of controversial criticism from President Obama in his 2010 State of the Union speech in the presence of a number of Supreme Court Justices.

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Sonia Sotomayor and the Construction of Merit

Guy-Uriel Charles, Daniel L. Chen, Mitu Gulati | 61 Emory L.J. 801 (2012)

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply [opensmartdoublequote]not that smart.[closesmartdoublequote] For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court.

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Designing Around a Patent Injunction: Developing a Comprehensive Framework for Determining When Contempt Proceedings Are Appropriate

Benjamin A. Saidman | 61 Emory L.J. 863 (2012)

Spurred by TiVo Inc. v. Dish Network Corp., this Comment proposes a factor-based framework for determining when contempt proceedings are appropriate in a patent infringement case. Once a court determines that an accused device infringes a patent and issues an injunction, the infringing party will often try to design around the injunction by creating a modified device. Patentees can then respond to potential continued infringement by instituting a new infringement suit or by making a motion for contempt.

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Reintroducing Intent into Predatory Pricing Law

Dustin Sharpes | 61 Emory L.J. 903 (2012)

Predatory pricing occupies a strange position in the antitrust laws. Normally, low prices are one of the major goals of antitrust law because they reflect competition and are generally beneficial to consumers. However, in some situations, the antitrust laws condemn prices that are too low as predatory: a company may be able to set prices arbitrarily low to gain monopoly power by excluding rivals or forcing them to acquiesce to its price leadership, and the company may then charge monopoly prices to the detriment of consumers.

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