Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Pennsylvania Carey Law School (23)
- Notre Dame Law School (21)
- University of Oklahoma College of Law (20)
- Chicago-Kent College of Law (16)
- University of Tennessee College of Law (11)
-
- University of Michigan Law School (10)
- American University Washington College of Law (8)
- University of Georgia School of Law (5)
- Washington and Lee University School of Law (5)
- West Virginia University (4)
- Yeshiva University, Cardozo School of Law (4)
- Barry University School of Law (3)
- Columbia Law School (3)
- Roger Williams University (3)
- University of Florida Levin College of Law (3)
- University of Richmond (3)
- Georgia State University College of Law (2)
- Maurer School of Law: Indiana University (2)
- Fordham Law School (1)
- Georgetown University Law Center (1)
- Northwestern Pritzker School of Law (1)
- Penn State Dickinson Law (1)
- Southern Methodist University (1)
- St. John's University School of Law (1)
- University of Colorado Law School (1)
- University of Kentucky (1)
- University of Maryland Francis King Carey School of Law (1)
- University of South Carolina (1)
- Wayne State University (1)
- Publication Year
- Publication
-
- All Faculty Scholarship (23)
- Court Briefs (17)
- Chicago-Kent Law Review (16)
- American Indian Law Review (15)
- Tennessee Law Review (9)
-
- Articles in Law Reviews & Other Academic Journals (8)
- Michigan Law Review (7)
- Faculty Scholarship (6)
- Oklahoma Law Review (5)
- Cardozo Law Review (4)
- Journal Articles (4)
- Law Faculty Scholarship (4)
- Powell Correspondence (3)
- UF Law Faculty Publications (3)
- West Virginia Law Review (3)
- Articles by Maurer Faculty (2)
- Georgia Law Review (2)
- Georgia State University Law Review (2)
- Powell Speeches (2)
- Scholarly Works (2)
- Tennessee Law in the News (2)
- University of Richmond Law Review (2)
- Books (1)
- Dickinson Law Review (2017-Present) (1)
- Faculty Journal Articles and Book Chapters (1)
- Fordham Urban Law Journal (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Georgia Journal of International & Comparative Law (1)
- Kentucky Law Journal (1)
- Law Faculty Publications (1)
- Publication Type
Articles 1 - 30 of 157
Full-Text Articles in Law
The Supreme Court And Children, Aaron Tang
The Supreme Court And Children, Aaron Tang
Northwestern University Law Review
How do children fare at the Supreme Court? Empirical research on the question is sparse, but existing accounts suggest a disheartening answer. A 1996 study found that children lost more than half of their cases in the Court, and a pair of prominent scholars lamented twenty years later that “the losses in children’s rights cases” had “outpace[d] and overwhelm[ed] the victories.”
In this Article, I present evidence that complicates this understanding. Based on an original dataset comprising 262 Supreme Court decisions between 1953 and 2023, I find that children have prevailed in 62.6% of their cases. This win rate is …
The Foreshadow Docket, Bert I. Huang
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 …
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 …
Brief Of Notre Dame Law School Religious Liberty Clinic As Amicus Curiae In Support Of Petitioner, John A. Meiser, Meredith Holland Kessler
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
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.
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee
Georgetown Law Faculty Publications and Other Works
This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …
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
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 …
Ford Motor Company V. Montana Eighth Judicial District, Maddie Rudge
Ford Motor Company V. Montana Eighth Judicial District, Maddie Rudge
Tennessee Law Review
No abstract provided.
Google Llc V. Oracle America, Inc., Elizabeth Spica
Google Llc V. Oracle America, Inc., Elizabeth Spica
Tennessee Law Review
No abstract provided.
Mississippi V. Tennessee, Jackson W. Welsh
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
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
Vega V. Tekoh, Elizabeth M. Hudson
West Virginia V. Epa, Troy C. Book
Legal Philosophy For Lawyers In The Age Of A Political Supreme Court, Patrick J. Borchers
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
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
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.
Original(Ism) Sin, G. Alex Sinha
Original(Ism) Sin, G. Alex Sinha
St. John's Law Review
(Excerpt)
During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …
Brief Of Amicus Curiae Religious Freedom Institute In Support Of Petitioner, John A. Meiser, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo
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
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 …
Is A Locomotive In Use And Therefore Subject To Locomotive Inspection Act Liability When It Makes A Temporary Stop?, Anne Marie Lofaso
Is A Locomotive In Use And Therefore Subject To Locomotive Inspection Act Liability When It Makes A Temporary Stop?, Anne Marie Lofaso
Law Faculty Scholarship
Case at a Glance: LeDure v. Union Pacific Railroad Company. Bradley LeDure, a long-time locomotive engineer for Union Pacific, slipped on the slick surface of a locomotive while it was idle but powered on, seriously injuring himself. If Union Pacific violated safety regulations under the Locomotive Inspection Act, then it would be negligent per se. But that theory of liability is only available if the locomotive was in use at the time of the accident. The case presents a question of statutory interpretation of the term use.
The Supreme Court Needs Diversity In More Ways Than One, Benjamin H. Barton
The Supreme Court Needs Diversity In More Ways Than One, Benjamin H. Barton
Tennessee Law in the News
Professor Barton recently authored an op-ed, "The Supreme Court Needs Diversity in More Ways Than One," which ran in the January 30th edition of the The Wall Street Journal. The piece is based on his new book The Credentialed Court.
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
All Faculty Scholarship
The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …
No [Concrete] Harm, No Foul? Article Iii Standing In The Context Of Consumer Financial Protection, Annefloor J. De Groot
No [Concrete] Harm, No Foul? Article Iii Standing In The Context Of Consumer Financial Protection, Annefloor J. De Groot
Georgia Law Review
In the U.S. Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins, the Court held that a bare procedural violation of a federal consumer protection statute is not enough to satisfy Article III’s standing requirement because the alleged injury is not sufficiently concrete. This decision resulted in a sizeable circuit split regarding standing under the Fair Debt Collection Practices Act, with some circuit courts interpreting the holding as narrowing the scope of standing for consumer protection claims, and others maintaining a broader interpretation, allowing plaintiffs to obtain redress for violations of consumer financial protections laws.
In its 2021 ruling in …
To Trust Or Not To Trust: Native American Healthcare Improvement In The Supreme Court’S Hands, Katherine Graham
To Trust Or Not To Trust: Native American Healthcare Improvement In The Supreme Court’S Hands, Katherine Graham
Georgia Law Review
The United States federal government’s relationship with Native American tribes has long been tenuous. Despite years of unjust and inhumane treatment of Native Americans by the government, Congress has attempted to rectify or limit the government’s harm to Native American people but has fallen short of upholding all agreements intended to improve United States-tribal relations. In particular, the government has not always followed treaties between the government and tribes, and the United States Supreme Court has failed to protect Native American rights in many cases. Central to this issue is the 1868 Treaty of Fort Laramie, in which the United …
Evolving Standards Of Irrelevancy?, Joanmarie Davoli
Evolving Standards Of Irrelevancy?, Joanmarie Davoli
Faculty Scholarship
No abstract provided.
Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw
Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw
Articles by Maurer Faculty
This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …
Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan
Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan
Articles by Maurer Faculty
Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …
Nfib V. Osha: A Unified Separation Of Powers Doctrine And Chevron's No Show, Randolph J. May, Andrew K. Magloughlin
Nfib V. Osha: A Unified Separation Of Powers Doctrine And Chevron's No Show, Randolph J. May, Andrew K. Magloughlin
South Carolina Law Review
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
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 …