Law Commons^™

The Foreshadow Docket, Bert I. Huang

Faculty Scholarship

Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call …

Brief Of Notre Dame Law School Religious Liberty Clinic As Amicus Curiae In Support Of Petitioner, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 22-741
Faith Bible Chapel International v. Gregory Tucker

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit

From the Summary of Argument

The First Amendment demands that courts refrain from intruding into disputes over a religious organization’s selection of important leaders. The ministerial exception enforces that demand. And thus, nearly every court to consider the issue has agreed: the ministerial exception promises something akin to an immunity from suit, which must be resolved early in litigation to be effective.

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Writ of Certiorari to the U.S. Court of Appeals for the Third Circuit

From the Summary of Argument

This case demonstrates an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Social Media On Trial: How The Supreme Court Could Permanently Alter The Future Of The Internet By Limiting Section 230'S Broad Immunity Shield, J. Tyler Wampler

Tennessee Law Review

Section 230 of the Communications Decency Act has allowed the internet to develop and flourish at an unprecedent pace. The law has been interpreted broadly to grant immunity to interactive computer services like social media platforms from liability for content posted by users. Wielding this immunity, internet platforms are empowered to act innovatively without fear of frivolous lawsuits. However, there are ongoing concerns that this broad interpretation shields modern tech companies from liability for actions that were never intended to be protected.

Two companion cases interpreting Section 230 are currently before the U.S. Supreme Court, where the Court is being …

Dobbs V. Jackson Women's Health Organization, Anna Grace Cole

Tennessee Law Review

No abstract provided.

Ford Motor Company V. Montana Eighth Judicial District, Maddie Rudge

Tennessee Law Review

No abstract provided.

Google Llc V. Oracle America, Inc., Elizabeth Spica

Tennessee Law Review

No abstract provided.

Mississippi V. Tennessee, Jackson W. Welsh

Tennessee Law Review

The Supreme Court's decision in Mississippi v. Tennessee quietly marked a potential turning point for the once antiquated doctrine of equitable apportionment. This doctrine provides a framework for resolving disputes over the allocation of resources, usually water, that cross state boundaries, and has done so since the early 20th century. In this article, we will delve into the history of equitable apportionment, examining its evolution from 1907 to the present day. We explore the key cases that have slowly broadened the doctrine, with a particular focus on Mississippi v. Tennessee and its implications for the future of equitable apportionment. Through …

Ncaa V. Alston (Case Notes), Carson Blakely

Tennessee Law Review

In August 2013, I was a thirteen-year-old immersed in the world of NCAA Football 14, a popular video game by Electronic Arts (EA). Through my digital replicas and the actual Tennessee Volunteer football players, my friends and I led the Vols to three consecutive BCS National Championships. My fictional character, a top running back, won three Heisman Trophies, which remains my greatest athletic accomplishment to date. Then, EA announced the discontinuation of the NCAA Football franchise, leaving millions of digital coaches, including myself, perplexed.1 Little did I know that the issue at hand was the complex legal realm of Name, …

Ncaa V. Alston, Emma S. Fowler

Tennessee Law Review

No abstract provided.

Vega V. Tekoh, Elizabeth M. Hudson

Tennessee Law Review

No abstract provided.

West Virginia V. Epa, Troy C. Book

Tennessee Law Review

No abstract provided.

Legal Philosophy For Lawyers In The Age Of A Political Supreme Court, Patrick J. Borchers

Tennessee Law Review

Legal Philosophy has long been concerned with the question of what brands a norm as legal, as opposed to a non-legal norm of justice or morality. This central question has occupied the attention of philosophers and lawyers for centuries. Roughly speaking, the Naturalist school contends that legal norms are inextricably intertwined with norms of morality and justice (and in its strongest form contends that law-like pronouncements that are immoral or unjust are not fully laws), while the Positivist school argues that a social construct (often called the Rule of Recognition) brands selected norms as legal, and thus legal norms may …

Brief Of Amici Curiae Jewish Coalition For Religious Liberty, Islam & Religious Freedom Action Team Of The Religious Freedom Institute, And Notre Dame Law School Religious Liberty Clinic In Support Of Petitioners, John A. Meiser, Nicole Stelle Garnett

Court Briefs

No. 22-238
Charter Day School, Inc. v. Bonnie Peltier

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

From the Summary of Argument

The Fourth Circuit’s gross misapplication of state-action doctrine contradicts decades of precedent and expands the doctrine beyond its breaking point. If not corrected, that analysis would also endanger many vital public services provided by religious charitable groups and undermine this Court’s recent free-exercise cases in the process.

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Brief Of Amicus Curiae Religious Freedom Institute In Support Of Petitioner, John A. Meiser, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo

Court Briefs

No. 21-1405
Lester J. Smith v. Timothy Ward

On Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

From the Summary of Argument

Lester Smith comes to this Court in unusual circumstances: the district court found that the Georgia Department of Corrections offered no rationale that could justify its prohibition on beards longer than half an inch under RLUIPA, and yet— without disputing that finding—the Eleventh Circuit ruled that the State may still enforce the half-inch limitation against Smith. The Eleventh Circuit’s denial of any relief from what has been shown to be …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioner, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo, Steven A. Engel, Michael H. Mcginley

Court Briefs

No. 21-418
Joseph A. Kennedy v. Bremerton School District

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

This case offers the Court a much-needed opportunity to resolve the longstanding confusion caused by its conflicting and erroneous interpretations of the Establishment Clause. Although recent decisions clarify that the government may not suppress private religious expression, the Court has yet to clear away an undergrowth of older precedents that are often read to suggest the opposite. Rather than permit those outdated decisions to persist and perpetuate confusion, the Court should …

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

Brief For The Partnership For Inner-City Education, Council Of Islamic Schools In North America, And National Council Of Young Israel As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should reverse the decision below and hold that the First Amendment permits no distinction between discrimination against religious groups based on their religious status and discrimination based on their religious use of generally available state benefits.

Brief Of Amici Curiae Benedictine College And Franciscan University Of Steubenville In Support Of Petitioners, Richard W. Garnett Iv, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 21-145
Gordon College v. Margaret DeWeese-Boyd

On Petition for Writ of Certiorari to the Supreme Judicial Court of Massachusetts

From the Summary of Argument

This Court should grant certiorari to make clear that the First Amendment guarantees religious colleges and universities the same vital protections that safeguard a religious grade school’s freedom to select the teachers who personify and teach its faith. Despite this Court’s recent admonition that such protections apply to a religious school’s selection of “any ‘employee’ . . . who serves as a messenger or teacher of its faith,” Our Lady of Guadalupe Sch. v. …

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should grant certiorari in order to clarify that any discrimination on the basis of religious status or religious use is subject to “the most exacting scrutiny.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017).

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Brief Of The Muslim Public Affairs Council, Religious Freedom Institute's Islam And Religious Freedom Action Team, And Asma Uddin, Stephanie Barclay

Court Briefs

No. 20-A90
Agudath Israel of America v. Andrew M. Cuomo

Including the Motion for Leave to File Amicus Curiae Brief in Support of Applicant by the Muslim Public Affairs Council, Religious Freedom Institute's Islam and Religious Freedom Action Team, and Asma Uddin (i–iii).

From the Summary of Argument

Since ancient times, peoples around the world have symbolically vested the perceived wrongdoings of their community onto “scapegoats,” who are sacrificed in the hope that those wrongdoings will be expiated, and the hard times will pass. Too often, religious minorities have served as scapegoats in times of sickness, war, and fear—from Jews …

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Loyola of Los Angeles Law Review

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo— cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption.

Building upon that body of scholarship, this Article begins with a descriptive …

Constructive Ambiguity And Judicial Development Of Insider Trading, Jill E. Fisch

All Faculty Scholarship

The Texas Gulf Sulphur decision began what has become a fifty-year project of developing U.S. insider trading regulation through judicial lawmaking. During the course of that project, the courts developed a complex, fraud-based approach to determining the scope of liability. The approach has led, in many cases, to doctrinal uncertainty, a result that is reflected in the recent decisions in Newman, Salman, and Martoma.

n the face of this uncertainty, many commentators have called for a legislative solution. This article argues, however, that the true challenge of insider trading regulation is a lack of consensus about the …

The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

All Faculty Scholarship

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array of …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …