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Articles 1 - 10 of 10
Full-Text Articles in Law
Reply Brief For Petitioner, Ferguson V. America, Brian Wolfman, Madeline H. Meth
Reply Brief For Petitioner, Ferguson V. America, Brian Wolfman, Madeline H. Meth
Faculty Scholarship
The Government concedes that the circuits are divided over whether 28 U.S.C. § 2255 limits a district court’s discretion in reviewing 18 U.S.C. § 3582(c)(1)(A) motions. And because it cannot dispute that this issue is cleanly presented, unaffected by the Sentencing Commission’s policy statement, and exceptionally important, it instead rewrites the question presented. The Government’s effort to replace a question about the relationship (if any) between Section 3582(c)(1)(A) and Section 2255 with one about whether the district court abused its discretion should be rejected, and with it the Government’s attempt to gloss over the intractable circuit split, its misguided argument …
Reply Brief For Petitioner, Muldrow V. City Of St. Louis, Madeline H. Meth, Brian Wolfman
Reply Brief For Petitioner, Muldrow V. City Of St. Louis, Madeline H. Meth, Brian Wolfman
Faculty Scholarship
Section 703(a)(1) is straightforward: It prohibits all discrimination against an employee “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e2(a)(1). The Department does not dispute that job transfers concern “terms and conditions” of employment. See Resp. Br. 1, 35. So, if the statute’s words are honored, and Jatonya Muldrow can show that the Department’s transfer decisions were imposed “because of” her sex, the Department is liable.
Yet the Department maintains that some discriminatory job transfers escape Title VII’s reach. It relies nearly exclusively …
Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig
Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig
Faculty Scholarship
In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"5 In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.6 After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" …
Brief For Petitioner, Muldrow V. City Of St. Louis, Missouri, Madeline H. Meth, Brian Wolfman
Brief For Petitioner, Muldrow V. City Of St. Louis, Missouri, Madeline H. Meth, Brian Wolfman
Faculty Scholarship
Title VII prohibits an employer from discriminating against an employee because of her race, color, religion, sex, or national origin. Its core antidiscrimination provision, Section 703(a)(1), protects individuals not only from discriminatory hiring, firing, or compensation but also from discrimination with respect to their “terms, conditions, or privileges” of employment. 42 U.S.C. § 2000e2(a)(1). Petitioner Jatonya Clayborn Muldrow maintains that her employer, the City of St. Louis Police Department, discriminated against her in the terms, conditions, or privileges of her employment when, because of her sex, it transferred her out of the Department’s Intelligence Division to an entirely different job, …
The Problem Is The Court, Not The Constitution, Jonathan Feingold
The Problem Is The Court, Not The Constitution, Jonathan Feingold
Faculty Scholarship
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Faculty Scholarship
The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …
Justices Citing Justices, Jay D. Wexler
Justices Citing Justices, Jay D. Wexler
Faculty Scholarship
Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …
The Ghosts Of Chevron Present And Future, Gary S. Lawson
The Ghosts Of Chevron Present And Future, Gary S. Lawson
Faculty Scholarship
In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …
Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming
Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
This Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of …
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman
Faculty Scholarship
Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.
MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …