Law Commons^™

The Twenty-First Century Death Penalty And Paths Forward, Jeffrey Omar Usman

Mississippi College Law Review

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States. Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration. While not abolished, in many states application of the death penalty is grinding or has ground to a halt. If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age …

Faux Advocacy In Amicus Practice, James G. Dwyer

Pepperdine Law Review

Amicus brief filing has reached “avalanche” volume. Supreme Court Justices and lower court judges look to these briefs particularly for non-case-specific factual information––“legislative facts”—relevant to a case. This Article calls attention to a recurrent yet unrecognized problem with amicus filings offering up legislative facts in the many cases centrally involving the most vulnerable members of society—namely, non-autonomous persons, including both adults incapacitated by mental illness, intellectual disability, or other condition, and children. Some amici present themselves as advocates for such persons but use the amicus platform to serve other constituencies and causes, making false or misleading factual presentations about the …

The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle

The Compass

The Supreme Court, a nine seat bench of unelected and lifetime tenured Justices, determines the constitutionality of dozens of cases each year. In this thesis, I research to what extent the political affiliation of the Justices affects the judicial decision making process and, ultimately, case outcomes. Using pattern matching, I evaluate due process opinions from Justice Breyer, Justice O’Connor, and Justice Scalia, all of whom have established constitutional analysis methods, in order to determine if they reasonably adhere to their established method. Due to the highly political nature of due process cases, variance between the expected (adherence to the Justices’ …

Foreword, Alexa Liverano

Journal of Race, Gender, and Ethnicity

No abstract provided.

The New Insular Cases, Willie Santana

William & Mary Journal of Race, Gender, and Social Justice

The Insular Cases is a name given to a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century. The Insular Cases rely on outmoded assumptions about the peoples who live in those islands, ninety-eight percent of whom belong to racial and ethnic minorities, and extend the extraconstitutional doctrine of territorial incorporation, a Plessy-style doctrine of separate governance for these territories that is different than the territories that preceded them. These cases, and the doctrine they announced, have been universally decried as …

A New Takings Clause? The Implications Of Cedar Point Nursery V. Hassid For Property Rights And Moratoria, Benjamin Alexander Mogren

William & Mary Bill of Rights Journal

In part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a …

Depoliticizing The Supreme Court Through Term Limits: A Worthwhile Reform Effort, Kara King

Fordham Law Voting Rights and Democracy Forum

The United States Supreme Court is in a legitimacy crisis. Americans are losing faith in the Supreme Court as an independent branch of government. As a result, policymakers and academics have put forth several proposals to reform the Court. The concept of an eighteen-year term limit maintains some bipartisan support and stands out as the most likely reform. This Article argues that term limits could help depoliticize the nomination process, bring greater stability to the Court, and restore confidence in the Court.

Is Title Vii An "Anti-Discrimination" Law?, Anuj C. Desai

University of Colorado Law Review Forum

No abstract provided.

Uzuegbunam V. Preczewski, Nominal Damages, And The Roberts Stratagem, Michael Wells

Georgia Law Review

In Uzuegbunam v. Preczewski the Supreme Court held for the first time that federal-court jurisdiction exists over a § 1983 case that presents only a claim for nominal damages. As a result, such claims remain subject to adjudication even when the plaintiff’s request for prospective relief, targeting an allegedly unlawful practice, has been mooted by the government’s discontinuance of the thus-challenged behavior. In dissent, Chief Justice Roberts maintained that the majority’s ruling clashed with Article III’s “personal stake” requirement and also unwisely permitted plaintiffs to sidestep controlling jurisdictional rules by adding a meaningless claim for nominal damages to a complaint …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

The Founders' Multi-Purpose Chief Justice: The English Origins Of The American Chief Justiceship, Justin W. Aimonetti, Jackson A. Myers

West Virginia Law Review

During the founding era, the American Chief Justice was nearly unrecognizable to modern eyes. Rather than a purely judicial officer, the Chief Justice was a multi-purpose minister, serving as a judge, an administrator, a diplomat, and an advisor. He was what we call the “multi-purpose Chief Justice.” The multi-purpose Chief Justice of the Early Republic originated with the ancient English office of the Lord Chief Justice. English judges historically served as multi-purpose ministers to the king, engaging in administrative and even political tasks. This was especially true for the Lord Chief Justice. Even as other English judges settled into more …

The Need For An Established Senate Rule On Election-Year And Lame Duck Session Supreme Court Nominations, Jacob R. Weaver

University of Michigan Journal of Law Reform Caveat

In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party. Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled.

When the Senate applied this rule in 2020, the …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

Unclear And Unestablished: Exploring The Supreme Court/Tenth Circuit Disconnect In Qualified Immunity Jurisprudence, Josiah Cohen

University of Colorado Law Review Forum

No abstract provided.

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Racial Revisionism, Shaun Ossei-Owusu

Michigan Law Review

A Review of The Enigma of Clarence Thomas. by Corey Robin.

Recent Developments, Clinton T. Summers

Arkansas Law Review

The United States Supreme Court upheld an Arkansas law regulating how pharmacies are reimbursed by pharmacy benefit managers. In Rutledge v. Pharmaceutical Care Management Ass’n, a unanimous Court decided that Arkansas Act 900, passed in 2015, was not pre-empted by the federal Employee Retirement Income Security Act of 1974 (“ERISA”).

“Remarkable Influence”: The Unexpected Importance Of Justice Scalia's Deceptively Unanimous And Contested Majority Opinions, Linda L. Berger, Eric C. Nystrom

The Journal of Appellate Practice and Process

No abstract provided.

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

The Doctrine Of Clarifications, Pat Mcdonell

Michigan Law Review

Clarifications are a longstanding but little-studied concept in statutory interpretation. Most courts have found that clarifying amendments to preexisting statutes bypass retroactivity limitations. Therein lies their power. Because clarifications simply restate the law, they do not implicate the presumption against retroactivity that Landgraf v. USI Film Products embedded in civil-statute interpretation. The problem that courts have yet to address is how exactly clarifying legislation can be distinguished from legislation that substantively changes the law. What exactly is a clarification? The courts’ answers implicate many of the entrenched debates in statutory interpretation. This Note offers three primary contributions. First, it summarizes …

Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras

Michigan Technology Law Review

The Supreme Court’s 2013 decision in Association for Molecular Pathology v. Myriad Genetics is an essential piece of the Court’s recent quartet of patent eligibility decisions, which also includes Bilski v. Kappos, Mayo v. Prometheus, and Alice v. CLS Bank. Each of these decisions has significantly shaped the contours of patent eligibility under Section 101 of the Patent Act in ways that have been both applauded and criticized. The Myriad case, however, was significant beyond its impact on Section 101 jurisprudence. It was seen, and litigated, as a case impacting patient rights, access to healthcare, scientific freedom, …

Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley

University of Michigan Journal of Law Reform

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the …

A Podcast Of One’S Own, Leah M. Litman, Melissa Murray, Katherine Shaw

Michigan Journal of Gender & Law

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

The Sacred Fourth Amendment Text, Christopher Slobogin

Michigan Law Review Online

The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …

In Defense Of (Circuit) Court-Packing, Xiao Wang

Michigan Law Review Online

Proposals to pack the Supreme Court have gained steam recently. Presidential candidate Pete Buttigieg endorsed a court-packing plan at the start of his campaign, and several other candidates also indicated a willingness to consider such a plan, including Senators Elizabeth Warren and Amy Klobuchar. Legal scholars have similarly called upon Congress to increase the size of the Supreme Court, particularly following the heated confirmations of Justices Neil Gorsuch and Brett Kavanaugh. These suggestions for Court reform have only gotten more pronounced with the recent passing of Justice Ruth Bader Ginsburg, the subsequent nomination of Judge Amy Coney Barrett, and the …

How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker

Michigan Law Review Online

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …

Democracy And The Fourth Seat: Kagan’S Jurisprudence,Stevens’S Legacy, Lauren Dimartino

University of Colorado Law Review Forum

No abstract provided.