Law Commons^™

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Scholarly Articles

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Creditor’S Failure To File A Proof Of Claim Is Inexcusable Where Potential Danger Of Prejudice To Debtor Exists, Meghan Lombardo

Bankruptcy Research Library

(Excerpt)

The Federal Rules of Bankruptcy Procedure provide that when an act is required … to be done at or within a specified period … the court for cause shown may at any time in its discretion… on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Rule 9006 grants a pardon for late filings that were caused by neglect. The Supreme Court has defined neglect as “‘giv[ing] little attention or respect’ to a matter or… ‘to leave undone or unattended to especially …

The Nondischargeability Of Government Cleanup Orders, Christina Mavrikis

Bankruptcy Research Library

(Excerpt)

One of the primary purposes of title 11 of the United States Code (the “Bankruptcy Code”) is to provide debtors with a financial fresh start. Upon the filing of a bankruptcy petition by or against the debtor, section 362(a) of the Bankruptcy Code provides that all entities are barred from actions to collect, assess, or recover any pre-petition claims against the debtor. In general, the automatic stay serves to halt any pending legal proceedings against the debtor so that the pre-petition claims can be managed and discharged by the bankruptcy court. There are, however, exceptions to the automatic stay. …

Clarence Thomas The Questioner, Ronnell Anderson Jones

Utah Law Faculty Scholarship

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Many have criticized him for his silence. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that the Justice’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions …

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

Articles

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Scholarly Articles

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh

Scholarly Articles

Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay …

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

The Supreme Court’S Limited Public Forum, Sonja R. West

Scholarly Works

When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these …

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.

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 …

Promoting Dignity And Preventing Shame And Humiliation By Improving The Quality And Education Of Attorneys In Sexually Violent Predator (Svp) Civil Commitment Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.

In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity …

Scalia In The Casebooks, Brian T. Fitzpatrick, Paulson K. Varghese

Vanderbilt Law School Faculty Publications

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at …

Jurisprudencia Del Tribunal Supremo De Los Estados Unidos [Term Analysis: Supreme Court Of The United States (2015-2016)], Jorge M. Farinacci Fernós

Journal Articles

El profesor Jorge M. Farinacci Fernós analiza una serie de casos resueltos por el Tribunal Supremo de los Estados Unidos durante el término 2015-2016 en los renglones de Derecho Constitucional, Procedimiento Criminal, Derecho Laboral, Procedimiento Civil, Derecho Administrativo, Derecho Penal, Quiebras y Derechos de Autor. El autor evalúa y critica en parte los casos de Puerto Rico v. Sánchez Valle y Puerto Rico v. Franklin California Tax Free Fund, cuyo efecto denomina como sustancial para la relación jurídico-política entre Puerto Rico y los Estados Unidos, particularmente en el segundo caso. En general, el profesor Farinacci Fernós comenta que el término …

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Scotus Denies Review In Gay Rights Case, Arthur S. Leonard

Other Publications

No abstract provided.

"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 …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Conservatives And The Court, Robert F. Nagel

Publications

No abstract provided.

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Law Faculty Publications

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

Publications

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

Scholarly Works

Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

Congress To Judges: We’Re The Boss Of You Now, Joanne Doroshow

Other Publications

No abstract provided.

Chevron's Interstitial Steps, Cary Coglianese

All Faculty Scholarship

The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. …