Law Commons^™

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore

Faculty Scholarship

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. Justice Alito repeated this argument in Dobbs v. Jackson Women’s Health. Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption …

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

Attempting—And Failing—To Balance Fairness And Efficiency In The Arbitral System: How Arbitration Institutions Are Defeating The Purpose Of Arbitration, Hannah N Myslik

Texas A&M Law Review

The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate.

The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions have directly reacted …

Talking About Abortion (Listening Optional), Jennifer W. Reynolds

Texas A&M Law Review

Whether we can expect others to listen—and whether we choose to listen to others—have become central challenges in handling conflicts around polarized and high-profile political matters. For those who study alternative dispute resolution (“ADR”), these concerns about listening hit especially close to the bone because they implicate some of the most foundational precepts of dispute resolution practice. This paper explores some of these implications in the context of the fight over reproductive rights, with special focus on the “listening dilemma” that people experience when navigating extremely difficult conversations around crucial political entitlements, especially when those entitlements are in the process …

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Faculty Scholarship

How do we evaluate a Supreme Court that writes more than it decides? Despite having the lowest decisional output in the modern era, the Roberts Court is the most verbose Supreme Court in history. The current Justices are more likely than past Justices to have their individual say in cases, writing more concurring and dissenting opinions than prior Courts. These opinions are longer, often strongly worded, and rarely add clarity to the underlying decision. The Roberts Court has shifted from being a decisional body to becoming an institution that comments on more cases than it decides.

This article critiques the …

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Texas A&M Law Review

The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …

Murphy V. Ncaa: The Constitutionality Of State-Authorized Sports Gambling, Shane Landers

Texas A&M Law Review

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” In Murphy v. NCAA, the United States Supreme Court held that a federal law that prevents States from legalizing sports gambling “violates the anticommandeering rule.” The Supreme Court’s decision in Murphy reemphasizes a fundamental principle of dual sovereignty—Congress is prohibited from “issu[ing] direct orders to the governments of …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Faculty Scholarship

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women appointed in …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

Lichtenberger And The Three Bears: Getting The Private Search Exception And Modern Digital Storage "Just Right", Samuel Crecelius

Texas A&M Law Review

Finding a happy medium is hard. Often, it is a challenge to find a workable balance between two unworkable extremes. Known as the “Goldilocks Principle,” this phenomenon has been observed in fields as diverse as developmental psychology and astrobiology. As Goldilocks found in the Three Bears’ house, “just right” may not come on the first attempt. We may have to explore the extremes of the spectrum—“too hot” and “too cold”—before we can settle on “just right. Goldilocks also discovered that this process is all the more difficult in a new environment—like the Three Bears’ house. Goldilocks persevered, however, until she …

The Rise And Fall Of Plausibility Pleading?, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint's allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a …

The End Of An Era? Federal Civil Procedure After The 2015 Amendments, Adam N. Steinman

Faculty Scholarship

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting …

The Sistren: Ranking The Top 10 Female Supreme Court Justices, Meg Penrose

Faculty Scholarship

Of all the “best” and “worst” Supreme Court lists published, there has never been a listing of the Top Ten female Justices. The reason for this scholarly void is simple: only four women have served on the Court. Indeed, only five women have been nominated. I am pleased to present the first, though admittedly incomplete, listing of the Top Ten female Justices.

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

Faculty Scholarship

The Supreme Court's unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito's opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.

This article for the Hastings Law Journal's symposium on …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein

Faculty Scholarship

On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.

Kryptonite For Cafa?, Adam N. Steinman

Faculty Scholarship

This essay — for the Review of Litigation’s symposium issue on the Class Action Fairness Act (CAFA) and accompanying panel at the 2013 annual meeting of the Association of American Law Schools — explores the tension between CAFA and the Erie doctrine. CAFA was designed to expand federal diversity jurisdiction over high-stakes state-law class actions and, thereby, allow federal judges to decide class certification pursuant to federal law. The Erie doctrine, by contrast, aims to discourage vertical forum shopping by requiring federal courts hearing state-law claims to follow state law. Put the two together, and the result could be that …