Law Commons^™

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett, Michael H. Mcginley

Court Briefs

DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents and next Friends of A.N. and R.N., Petitioners

v.

A. PENDER MAKIN, in Her Official Capacity as Commissioner of the Maine Department of Education, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

BRIEF FOR COUNCIL OF ISLAMIC SCHOOLS IN NORTH AMERICA, PARTNERSHIP FOR INNER-CITY EDUCATION, AND UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PETITIONERS

No. 20-1088

March 11, 2021

Amici curiae operate, represent, and support elementary …

Dissenting From The Bench, Christine Venter

Journal Articles

This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

Proximate Vs. Geographic Limits On Patent Damages, Stephen Yelderman

Journal Articles

The exclusive rights of a U.S. patent are limited in two important ways. First, a patent has a technical scope—only the products and methods set out in the patent’s claims may constitute infringement. Second, a patent has a geographic scope—making, using, or selling the products or methods described in the patent’s claims will only constitute infringement if that activity takes place in the United States. These boundaries are foundational features of the patent system: there can be no liability for U.S. patent infringement without an act that falls within both the technical and geographic scope of the patent.

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. …

Precedent And Constitutional Structure, Randy J. Kozel

Journal Articles

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

The Missing Justice In Coleman V. Miller, Barry Cushman

Journal Articles

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.”

Scholars understandably have been puzzled by how a decision in which a full …

"To Help, Not To Hurt": Justice Thomas's Equality Canon, Nicole Stelle Garnett, William S. Consovoy

Journal Articles

To comprehend Justice Thomas’s views on racial equality requires an understanding of how his life experiences influence his approach to questions of race and the law. Recurring themes in his opinions about racial equality include his belief that racial preferences stigmatize their beneficiaries, his concern that the prevailing notion that racial integration is necessary to black achievement is rooted in a presumption of racial inferiority, his worry that affirmative action efforts provide cover for the failure to address the urgent needs of disadvantaged Americans, and his knowledge that seemingly benign policies can mask illicit motives. Finally, Justice Thomas contends that …

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Brief Amici Curiae Of 37 Intellectual Property Professors In Support Of Petition For Certiorari, Mark A. Lemley, Mark Mckenna

Court Briefs

This case presents two issues that justify this Court’s review.

First, the Federal Circuit upheld a finding of design patent infringement based on the very same Apple designs that it found functional under trade dress law. Such a counterintuitive outcome is possible because the Federal Circuit has constructed a highly constrained definition of functionality in design patent law, which is at odds with this Court’s precedent in both utility patent and trade dress cases. Coupled with its recent re-interpretation of the design patent infringement standard, the Federal Circuit’s approach to functionality makes it quite likely that defendants will be held …

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett

Court Briefs

In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The correct test of separability therefore considers conceptual separability to be nothing more than a coda to physical separability, and asks only whether the claimed design could be removed from …

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Brief Of Amici Curiae Constitutional Law Scholars In Support Of Petitioners, Richard W. Garnett, Ryan A. Shores, William J. Haun

Court Briefs

“[I]n a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781, 2785 (2014) (Kennedy, J., concurring). The Religious Freedom Restoration Act (“RFRA”)2 addresses that difficulty by harmonizing religious freedom and the interests of third parties. RFRA will not exempt free exercise from a law’s command simply because the law substantially burdens religion—nor will it deny a religious exemption simply because the exemption would affect a third party.

Brief Of Law Professors Bruce P. Frohnen, Robert P. George, Alan J. Meese, Michael P. Moreland, Nathan B. Oman, Michael Stokes Paulsen, Rodney K. Smith, Steven D. Smith, And O. Carter Snead As Amici Curiae In Support Of Petitioners, O. Carter Snead, Robert P. George, Alan J. Meese, Michael P. Moreland, Nathan B. Oman, Michael` Stokes Paulsen`, Rodney K. Smith, Steven D. Smith

Court Briefs

Suppose a federal law required government officials to enter a Catholic church and use church property to distribute contraceptives and abortifacients over church’s objection. Such a law would surely burden the church’s religion, even if the government paid for the objectionable medications and compensated the church for the use of its resources. By commandeering church property, such a law would force the church to be complicit in activity to which it has serious religious objections

The Hughes Court Docket Books: The Late Terms, 1937–1940, Barry Cushman

Journal Articles

For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions of rendered during the late years of the Hughes Court, from the 1937 …

Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark

Court Briefs

From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit's recent ruling in Sarei …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Review Essay: Liberalism And The Supreme Court, Donald P. Kommers

Journal Articles

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.

Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple

Journal Articles

Zweck der folgenden Ausführungen ist die Darlegung der Bedeutung außergesetz licher Urteilsmaßstäbe in der amerikanischen Verfassungsrechtsprechung. Dabei sollen vor allem diejenigen Urteilskriterien untersucht werden, die den größten Einfluß auf das amerikanische Verfassungsrecht haben dürften; sie sollen im Kontext des gegen wärtigen case law untersucht werden.

The Value Of Comparative Constitutional Law, Donald P. Kommers

Journal Articles

The publication of an English translation of a notable decision by a major foreign tribunal' is a fitting occasion on which to discuss the value of comparative constitutional law as a subject of academic study and as a legal discipline of valid current applicability. When referring to comparative constitutional law, I am speaking mainly of case law and most particularly of judicial decisions handed down by national tribunals empowered to review the constitutionality of legislative and executive acts.

The Supreme Court, Politics, And Modern Society, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Charles S. Hyneman's The Supreme Court on Trial (New York: Atherton Press, 1963).