Law Commons^™

Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore

All Faculty Publications

This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of the SCC at this juncture. This appropriately reflects the constellation of some long-unsolved problems (e.g., control of unfair terms in standard form contracts), confusion around key concepts associated with protection of contractual fairness (e.g., unconscionability and good faith), and judicial disagreement over the merits of general …

The Doctrine Of Contractual Absolution, Marcus Moore

All Faculty Publications

The absence of a knowledge requirement is a novel and astonishing feature of unconscionability in Canada, and one that calls for scholarly reflection. In other jurisdictions and formerly in Canada, unconscionability required that the benefiting party knew or at least should have known that its counterpart was impaired in the making of the contract. Such knowledge established a minimum level of wrongdoing, so that even without more active exploitation, it was unconscionable as an “unconscientious abuse of power.” But following the Supreme Court decision in Uber Technologies Inc. v. Heller (2020), Canadian contract law rejects this conventional approach. It does …

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray

Online Publications

The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization gives states the maximum amount of freedom to restrict abortion. The decision is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to prohibit abortions in circumstances in which a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Law & Economics Working Papers

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Governors and Chief Justices of Delaware lined up to defend the state’s …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Articles

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Elucidation Strategies: A Case Study Of The U.S Supreme Court, Gordon Carroll

Belmont University Research Symposium (BURS)

The research encompassed a study on the consistency in judicial interpretations and factors that influenced U.S. Supreme Court decisions. To do this, the study explored literature and theoretical perspectives relating to judicial interpretations and decisions. The target population entailed officers in the Office of the Solicitor General for their experience in Court rulings. Interviews were conducted among ten respondents, with data collected, coded, and analyzed. The study results were then presented, discussed, and conclusions derived from them. Generally, the study found serious inconsistencies in interpretations not only between justices but also in almost similar cases. Decisions by justices were conflicting …

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

Fair Construction To Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Joshua Lloyd

Senior Honors Theses

The proper method of constitutional interpretation has been debated throughout the history of the Supreme Court. This debate has been defined by the tension between the originalist and living constitution jurisprudences. Each has been dominant at one point in United States history. A fair construction jurisprudence was almost universally utilized by the Supreme Court to interpret the Constitution according to its original meaning until Plessy v. Ferguson. Then, due to an alliance between evangelicals and progressive scholars, a broader, more lenient living constitution jurisprudence developed which allowed justices to interpret the Constitution in light of changing social norms. Finally, …

Nobody's Business: A Novel Theory Of The Anonymous First Amendment, Jordan Wallace-Wolf

Faculty Scholarship

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one's ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one's conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where …

Supreme Court Ruling On The Texas Abortion Law: Beginning To Unravel Roe V Wade, I. Glenn Cohen, Rebecca Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to …

The Us Supreme Court’S Rulings On Large Business And Health Care Worker Vaccine Mandates: Ramifications For The Covid-19 Response And The Future Of Federal Public Health Protection, Lawrence O. Gostin, Wendy E. Parmet, Sara Rosenbaum

Georgetown Law Faculty Publications and Other Works

On January 13, 2022, the Supreme Court issued 2 landmark rulings on the federal government’s power to mandate COVID-19 vaccinations. The Court curtailed the government’s ability to respond to the pandemic and may have also severely limited the authority of federal agencies to issue health and safety regulations.

In National Federation of Independent Business v Department of Labor, the Court blocked an Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring vaccination, subject to religious or disability accommodations, or weekly testing and masking in businesses with 100 or more employees. In Biden v Missouri, the Court …

The Origins Of Supreme Court Question Selection, Benjamin B. Johnson

Journal Articles

Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet, despite the significance of this practice, its origins are poorly understood. This is the first Essay to uncover the hidden history of the Court’s question-selection powers. It reveals an important---and possibly intractable---conflict between the Court’s legal authority and …

The Barton Doctrine's Applicability To Suits Against Bankruptcy Trustees When The Bankruptcy Court Lacks Jurisdiction Over The Matter, Chelsea Frankel

Bankruptcy Research Library

(Excerpt)

In Barton v. Barbour, the Supreme Court established the general rule that a lawsuit cannot be brought against a receiver for acts done within their authority without leave of the court that appointed such receiver. The Court precluded a personal injury suit against a company's receiver without leave of the appointing court, finding that if the plaintiff were permitted to recover on his personal injury claim against the receiver, he would be recovering from the receivership property "without regard to the rights of other creditors or the orders of the court which is administering the trust property." The …

Abortion And Safe Haven Laws, Jeffrey A. Parness

College of Law Faculty Publications

Notwithstanding the assertions of the State of Mississippi, of one amicus, and of Justice Amy Coney Barrett in Dobbs v. Jackson Women’s Health Organization, abortion laws and safe haven laws are oil and vinegar. Not only do they not mix, but safe haven laws in some ways support the continuing validity of the balance on individual privacy interests and legitimate governmental interests struck in the Roe v. Wade decision on abortion. Both abortion availability laws and safe haven laws advance the interests of women who choose not to parent children within their existing family structures. But safe haven laws, …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

The Roberts Court And Lost Esi, Jeffrey A. Parness

College of Law Faculty Publications

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To …

Privacy Qui Tam, Peter Ormerod

College of Law Faculty Publications

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Faculty Publications

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …

From Contacts To Relatedness: Invigorating The Promise Of "Fair Play And Substantial Justice" In Personal Jurisdiction Doctrine, Richard Freer

Faculty Articles

Personal jurisdiction is integral to access to justice. Without a convenient court, plaintiffs’ efforts to vindicate claims (and society’s interest in private enforcement of law) may be thwarted. After considerable engagement in between 1977 and 1990, the Supreme Court did not decide a personal jurisdiction case between 1990 and 2011. This Symposium addresses what the Court has done regarding personal jurisdiction in the “new era” that started in 2011. That year brought a specific jurisdiction decision, J. McIntyre Machinery, Ltd. v. Nicastro, and a general jurisdiction decision, Goodyear Dunlop Tires Operations, S.A. v. Brown. The former broke no …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

The New Thoreaus, Mark L. Movsesian

Faculty Publications

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly sixty-six million people—now claim, like Thoreau, to …

The New Disestablishments, Marc O. Degirolami

Faculty Publications

(Excerpt)

The individual has the autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the policy preferences of that class in this domain, should be imposed on everyone. These propositions reflect two central creeds of what this Article calls the "new establishment." They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, science, healthcare and medicine, and more.

Whether these propositions constitute a "religious" establishment turns out to be an irrelevant distraction. To …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Faculty Publications

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Litigating The Separation Of Powers, Elizabeth Earle Beske

Articles in Law Reviews & Other Academic Journals

No abstract provided.