Law Commons^™

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Publications

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Faculty Publications

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Publications

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any "person" who violates federal rights. The U.S. Supreme Court has long held that "person" excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion--in legalese, Section 1983's nonabrogation of sovereign immunity--along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983's enactment, the caselaw …

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele

Faculty Publications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …

Symposium: Business In The Roberts Court - Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler

Faculty Publications

The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court. Many commentators believe that Court is particularly sympathetic to business interests in concerns. A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis. In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues. Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium.

Split Definitive: How Party Polarization Turned The Supreme Court Into A Partisan Court, Neal Devins, Lawrence Baum

Faculty Publications

No abstract provided.

The Amicus Machine, Allison Orr Larsen, Neal Devins

Faculty Publications

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …

The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove

Faculty Publications

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.

Looking Ahead To The 2005-06 Term (2005), Jonathan H. Adler

Faculty Publications

This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and …

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Faculty Publications

The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the "meaning" or "message" of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the "context," which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the …

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Faculty Publications

No abstract provided.

Better Lucky Than Good, Neal Devins

Faculty Publications

No abstract provided.

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Faculty Publications

No abstract provided.

At War With Civil Rights And Civil Liberties, Thomas E. Baker

Faculty Publications

This essay looks at the Supreme Court and acquiescence to measures by the Executive Branch that limit or suspend civil liberties during times of war or threats to national security.

Supreme Court Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Faculty Publications

No abstract provided.

Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin

Faculty Publications

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins

Faculty Publications

No abstract provided.

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Faculty Publications

No abstract provided.

Government Lawyers And The New Deal, Neal Devins

Faculty Publications

No abstract provided.

Unitariness And Independence: Solicitor General Control Over Independent Agency Litigation, Neal Devins

Faculty Publications

With a few exceptions, the Solicitor General controls all aspects of independent agency litigation before the Supreme Court. Solicitor General control of Supreme Court litigation creates a tension between independent agency freedom and the Solicitor General's authority. On the one hand, Solicitor General control provides the United States with a unitary voice before the Supreme Court, and provides the Court with a trustworthy litigator to explicate the government's position. On the other hand, such control may undermine the autonomy of independent agency decision making. In this Article, the author argues for a hybrid model of independent agency litigation in the …

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Faculty Publications

No abstract provided.

Divided Justice: A Commentary On The Nomination And Confirmation Of Justice Thomas, Michael J. Gerhardt

Faculty Publications

No abstract provided.