Article Request, and Extra-legal Cases

[Eric J Segall]

I think almost all Supreme Court constitutional cases are "extra-legal," but under conventional standards Allen v. Wright has to be one of the worst. The plaintiffs didn't have standing to challenge tax exemptions to allegedly racially discriminatory private schools because they couldn't prove causation even though, in a previous case, similarly situated plaintiffs did have standing. Why? Because those plaintiffs proved their allegations at trial. In other words they proved what the Allen plaintiffs alleged and that is why the Allen plaintiffs didn't have standing (that was the Court's own rationale, really).

Romer's reasoning (not necessarily the result) is also anti-law as the Court did not say one word about the main case (Bowers) relied upon by the dissent and the state to support their arguments, not one syllable. What is rule of law like about that?

Best,

Eric
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Lou Fisher [lfisher11 at verizon.net]
Sent: Tuesday, October 04, 2011 1:51 PM
To: mark.kende at drake.edu; conlawprof at lists.ucla.edu
Subject: Re: RE: Article Request, and Extra-legal Cases

Korematsu and Hirabayashi were both overturned in lower court in the 1980s on a coram nobis filing (fraud against the Supreme Court for misleading Executive Branch arguments in court).  See Korematsu v. United States, 584 F.Supp. 1406 (D. Cal. 1984); Hirabayashi v. United States, 627 F.Supp. 1445 (W.D. Wash. 1986); and Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987).  Of course Congress passed legislation in 1988 to apologize and offer cash reparations for what was done to the Japanese Americans (about two-thirds of them U.S. citizens).


On 10/04/11, Mark S Kende<mark.kende at drake.edu> wrote:
I have two questions for the list.  Feel free to reply privately.

1.I recently saw an SSRN paper mentioned that dealt with the fact that the House of Representatives now requires its members to assert the constitutional foundations for any legislation being introduced.  I believe the paper assesses the legal significance of this House rule.  Does anyone know the SSRN or other cite for this paper?

2.Which U.S. Supreme Court cases, if any, do folks think should or could be considered “extra-legal” in some sense?  I don’t mean cases that people really dislike, though there may be some overlap.  I also would prefer to stay away from cases that have been overturned by the Court itself as that seems too easy.  You can define that term as you wish otherwise.  (Perhaps one answer some folks would have is no cases, as the Court’s decisions can’t be “extra-legal.”)  Korematsu occurred to me as a possibility (though I can see the counter-arguments) but I would love to hear what others think.

Thanks.  Mark

Professor Mark Kende
James Madison Chair in Constitutional Law
Director, Drake University Constitutional Law Center
2507 University Ave., Des Moines, IA 50311
515-271-3354, 515-271-1858 (fax)
mark.kende at drake.edu<mailto:mark.kende at drake.edu>

Author, Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge Univ. 2009), http://www.amazon.com/Constitutional-Rights-Two-Worlds-Africa/dp/product-description/0521171768
SSRN sample papers:  http://ssrn.com/author=339761
Center Web Site:  http://www.law.drake.edu/academics/conLaw/



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