Law Commons^™

Transparency And The Supreme Court—Can Employers Refuse To Disclose How Much They Pay For Health Care?, Nicholas Bagley, Christopher Koller

Articles

For decades, the prices that hospitals and physicians charge private insurers have been treated as trade secrets. Even though inflated prices are an enormous reason why health care is so much more expensive in the United States than in other countries, we have only a hazy picture of what those prices actually are.

How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In this special report, Knoll and Mason discuss how the Massachusetts Supreme Judicial Court should apply Wynne when it hears on remand First Marblehead v. Commissioner of Revenue. The authors conclude that when it originally heard the case, the Massachusetts court mistakenly considered, as part of its internal consistency analysis, whether Gate Holdings Inc. experienced double state taxation. As developed by the U.S. Supreme Court and most recently applied in Wynne, the internal consistency test is not concerned with actual double taxation that may arise from the interaction of different states’ laws. Rather, the test is designed to determine …

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such as whether …

Antitrust Arbitration And Merger Approval, Mark A. Lemley, Christopher R. Leslie

Northwestern University Law Review

In a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum.

Arbitration differs from litigation in ways that harm the interests of consumer antitrust plaintiffs. For example, arbitration limits discovery and has no meaningful appeals process. Furthermore, defendants use the terms in arbitration clauses to prevent class actions and to undercut the pro-plaintiff features of antitrust law, including mandatory treble damages, meaningful injunctive relief, recovery of attorneys’ fees, and a …

The Integrated Approach: A Solution To Patent Subject Matter Eligibility Standards In The Software Context, Carrie Moss

Journal of Intellectual Property Law

No abstract provided.

Why Copyright Law Lacks Taste And Scents, Leon Calleja

Journal of Intellectual Property Law

No abstract provided.

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Michigan Journal of Environmental & Administrative Law

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …

When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson

University of Michigan Journal of Law Reform

This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in a …

Judicial Candor And Extralegal Reasoning: Why Extralegal Reasons Require Legal Justifications (And No More), Eric Dean Hageman

Notre Dame Law Review

This Note’s first Part explores two landmark Supreme Court cases, Planned Parenthood of Southeastern Pennsylvania v. Casey and NFIB, that may have been decided based on extralegal considerations. Part II describes three prominent theories of judicial candor with an eye to the results they might yield with respect to extralegal reasoning. Part III offers and defends a new, partial theory of judicial candor. This theory is that a judge who employs extralegal reasoning should omit discussion of her reliance on that reasoning and justify her decision with legal reasoning.

The first two Parts will demonstrate that there is a …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

Confusing Clarity: The Pregnancy Discrimination Act After Young V. Ups, Inc., Jessica M. Bretl

Notre Dame Law Review Reflection

On March 25, 2015, the Supreme Court issued an opinion in Young v. UPS, Inc.—the most recent case in the Court’s pregnancy discrimination jurisprudence. Young focused on an interpretation of one clause of the Pregnancy Discrimination Act (PDA) and how that interpretation would shape claims of employment discrimination by pregnant employees seeking work accommodations. This Comment argues that the majority opinion in Young did not clarify, but only muddied the waters: the Young framework presents challenges for the lower courts tasked with applying the framework and creates uncertainty for future pregnancy discrimination litigation.

Part I of this Comment provides …

Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown

Notre Dame Law Review

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, …

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus

Faculty Publications

No abstract provided.

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …

Adopting The Gay Family, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Sexual Minority Stigma And System Justification Theory: How Changing The Status Quo Impacts Marriage And Housing Equality, Jordan A. Blenner

Department of Psychology: Dissertations, Theses, and Student Research

Sexual minorities (i.e. lesbians and gay men) experience systemic discrimination throughout the United States. Prior to the Supreme Court ruling in Obergefell v. Hodges (2015), in many states, same-sex couples could not marry and sexual minorities were not protected from sexual orientation housing discrimination (Human Rights Campaign, 2015). The current, two-experiment study applied Jost and Banaji’s (1994) System Justification Theory to marriage and housing discrimination. When sexual minorities question dissimilar treatment, thereby threatening the status quo, members of the heterosexual majority rationalize sexual minority discrimination to maintain their dominant status (Alexander, 2001; Brescoll, Uhlmann, & Newman, 2013; Citizens for Equal …

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

Meg Penrose

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.

The Influence Of Setting On Supreme Court Religious Expression Decisions, Joseph J. Hemmer Jr.

Communication and Theater Association of Minnesota Journal

The First Amendment prohibits any establishment of religion, a dicta that has been applied in an apparently inconsistent manner by the Supreme Court when called upon to evaluate various forms of verbal and nonverbal religious communication. Court decisions have approved religious prayers and displays in government settings. When such exercises and displays were introduced to the public school academic setting, the Court chose to disallow the practice. An examination of judicial opinions reveals that justices recognize three factors inherent to the academic setting which justify the apparently contradictory decisions. Because of the captive nature of the audience, the presence of …

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.

Finders Keepers, Or Finders Weepers? A Proposed Answer To A Question Raised By Myriad Genetics, Jingshi Shi

Journal of Intellectual Property Law

No abstract provided.

Table Of Contents, Vol. 22:1, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

The Semi-Retirement Of Senior Supreme Court Justices: Examining Their Service On The Courts Of Appeals, Jon A. Gryskiewicz

Seton Hall Circuit Review

No abstract provided.

Bringing More Finality To Finality: Conditional Consent Judgments And Appellate Review, Thomas A. Engelhardt

St. John's Law Review

(Excerpt)

Part I provides background on finality, including an overview of the final judgment rule and other statutory grants of appellate jurisdiction. Part I then discusses consent judgments, including conditional consent judgments. Part II examines the circuit splits with respect to issues of finality and the appealability of consent judgments that reserve a right to appeal. Part III presents arguments for and against strict interpretation and application of the finality requirement regarding consent judgments. Part IV argues for resolving the controversy by adopting a standard by which appellate courts uniformly recognize a consent judgment’s reservation of a right to appeal …

Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines

Terence Lau

In this article, we examine the issues that bring First Amendment jurisprudence to the grant of certiorari in Pleasant Grove v. Summum, scheduled for oral argument in the Supreme Court of the United States in November. We examine the historical basis for America’s religious heritage, the historical judicial treatment of the religious clauses, and the erosion of the wall of separation between church and state. We examine the Ten Commandments, finding inherent discrimination present in modern-day attempts to advance a particular version of the Ten Commandments as secular. By drawing upon Rousseau’s civic religion, we suggest alternative routes for the …

7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti

Corey A Ciocchetti

These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.

Front Matter

University of Richmond Law Review

No abstract provided.

Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz

Educational Leadership Faculty Publications

Financial resources for public education are increasingly scarce, and district leaders at all levels continue to struggle to maintain adequate levels of financial resources for their students and programs using complex funding formulas unique to their own jurisdictions. To help educators and education stakeholders better understand the dimensions of paying for public education, we begin with an overview of the historical development of school finance litigation that has shaped the funding mechanisms in most jurisdictions. The next section highlights developments in four representative jurisdictions from the funding formulas currently available in ASBO International’s Funding Formula Library. The library, available on …

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

All Faculty Scholarship

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

Steady As She Goes: The 2016-17 Term Of The Us Supreme Court, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.