Law Commons^™

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Just Extracurriculars?, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …

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 …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

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 …

Second Amendment Exceptionalism: Public Expression And Public Carry, Timothy Zick

Faculty Publications

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court recognized a right to carry firearms in public places. The scope of that right will depend on where, why, and how governments regulated public carry during the eighteenth and perhaps nineteenth centuries. The Court claimed that its turn to history for determining the scope of Second Amendment rights “accords with” and “comports with” how the Court has interpreted First Amendment rights. This Article examines and rejects that claim, both in general and specifically as it applies to the public exercise of Second Amendment rights. Although Bruen …

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

Scholarly Works

Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

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

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" …

Some Are More Equal Than Others: U.S. Supreme Court Clerkships, Tracey E. George, G. Mitu Gulati, Albert H. Yoon

Vanderbilt Law School Faculty Publications

The most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’ paths from college to the Court to careers. Research shows that Court clerkships favor educational pedigree and status over pure achievement. …

What Would Happen To All Of The Prior Chevron Cases In A Non-Chevron World?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

2023 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Above Reproach? The U.S. Supreme Court's Ethical Issues, Christopher J. Przemieniecki, Jana Nestlerode, Carli Younce

Criminal Justice Faculty Publications

With society scrutinizing the American criminal justice system, a standard of ethics becomes ever so important for law enforcement officials, members of the bench, and correctional personnel. Creating a code of conduct not only benefits the individual players in the criminal justice system but it also protects the integrity of each institution. Unfortunately, one of the most important judicial branches in the criminal justice system, the United States Supreme Court, does not have, nor follow an ethical code of conduct. This creates a problem for criminal justice practitioners, the media, and society. This article examines the current requirements for a …

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 …

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, …

Law School News: Dean Bowman On The Scotus Admissions Decision 6-29-2023, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.

Divided Court Finds Generic Redactions Sufficient To Admit Confessions Of Non-Testifying Codefendants, Jeffrey Bellin

Popular Media

No abstract provided.

Four Maurer School Of Law Students Selected As 2023 Stevens Fellows, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four Indiana Law students have been selected as Stevens Fellows, the John Paul Stevens Foundation accounced today (June 20). Selection as a Stevens Fellow allows students to receive critical financial support while participating in unpaid summer legal internships serving the public interest.

Named after the late U.S. Supreme Court Justice, the John Paul Stevens Foundation is dedicated to promoting public interest and social justice values in the next generation of American lawyers.

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, …

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

All Faculty Scholarship

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

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.

The Aftermath Of Dobbs: How The Criminalization Of Abortion Has Obstructed The Exercise Of Bodily Autonomy, Sonia Bakshi

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

This Blog addresses the topic of bodily autonomy in relation to the criminalization of abortion because everyone should be entitled to the right to make their own choices, especially when it comes to their bodies, and even greater, their selves as a whole. With the recent overturning of Roe v. Wade, the ability to exercise bodily autonomy has never been more obstructed. The Supreme Court has left the nation with the impression that they do not believe women are capable of making decisions about their own bodies or their own futures. Now, it’s important to look into what the ripple …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

Faculty Publications

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

Replacing Notorious: Barret, Ginsburg, And Postfeminist Positioning, Calvin R. Coker

Faculty Scholarship

This essay offers a rhetorical reading of Amy Coney Barrett’s confirmation hearings to make sense of how widespread outrage over replacing the late Ruth Bader Ginsburg with a conservative idealogue was resolved through the invocation of postfeminist motherhood. I argue that GOP Senators and Barrett herself positioned her nomination as the achievement of feminist goals, justified through rhetorics of choice and the idealization of (white) motherhood. These strategies cement Barrett as the logical and defensible successor to both Ginsburg’s seat and her legacy of feminist work. I conclude with the implications of this circulation of postfeminist motherhood, with focus on …

Justices Search For A Clear Rule For Confessions In Joint Trials, Jeffrey Bellin

Popular Media

No abstract provided.

The Evidentiary Challenges Of Confessions In Co-Defendant Trials, Jeffrey Bellin

Popular Media

No abstract provided.

Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll

All Faculty Scholarship

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …

Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.

This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …

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, …