42 Hastings Const. L.Q. [i] (2014-2015)

handle is hein.journals/hascq42 and id is 1 raw text is: 




HASTINGS CONSTITUTIONAL LAW QUARTERLY

VOLUME 42                   FALL 2014                   NUMBER 1


                         Table of Contents


                           ARTICLES

PROBABILITY, CONFIDENCE, AND        THE   CONSTITUTIONALITY    OF
SUMMARY JUDGMENT
by L uke M eier ................................................................................................   1

   Professor Suja Thomas has famously asserted that summary judgment
violates the Seventh Amendment guarantee of a right to a jury trial in civil
cases. Most commentators and courts, however, continue to believe that
summary judgment is constitutional and that the Supreme Court in Fidelity
& Deposit Co. v. United States resolved this issue.
   This Article argues that this entire debate is misguided. The current
debate has proceeded under the assumption that every summary judgment
raises identical Seventh Amendment concerns. The reality, however, is
more complex.   This Article distinguishes between the concepts of
probability and confidence, both of which can be the basis of a summary
judgment. When summary judgment is entered pursuant to a confidence
analysis, no Seventh Amendment violation occurs. This conclusion is
confirmed by existing Supreme Court case law. When, however, summary
judgment is entered pursuant to a probability analysis, Seventh
Amendment concerns arise. Contrary to popular belief, the Supreme
Court has not addressed these Seventh Amendment concerns.

INCOHERENT AND INDEFENSIBLE: AN INTERDISCIPLINARY CRITIQUE OF
THE SUPREME COURT'S VOID-FOR-VAGUENESS DOCTRINE
by Ryan M cCarl ............................................................................................  73

   The Supreme Court's void-for-vagueness (or simply vagueness)
doctrine, rooted in the substantive due process guarantee of the Fifth and
Fourteenth Amendments, is occasionally used to strike down statutes that
fail to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute and encourage
arbitrary and erratic arrests and convictions.

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