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United States Supreme Court

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Supreme Court Decisions In Review (Part 2), Donald Roth Aug 2020

Supreme Court Decisions In Review (Part 2), Donald Roth

Faculty Work Comprehensive List

"While the Court generally leaned conservative, there were several important decisions that progressives would herald as well."

Posting about recent Supreme Court decisions from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.

https://inallthings.org/supreme-court-decisions-in-review-part-2/


Supreme Court Decisions In Review (Part 1), Donald Roth Aug 2020

Supreme Court Decisions In Review (Part 1), Donald Roth

Faculty Work Comprehensive List

"As we glance forward toward the upcoming political season, we also want to take the time to look back at some of the cases this term that have caused a stir in the governmental system."

Posting about recent Supreme Court decisions from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.

https://inallthings.org/supreme-court-decisions-in-review-part-1/



Five Takeaways From High Court's Term, John M. Greabe Aug 2020

Five Takeaways From High Court's Term, John M. Greabe

Law Faculty Scholarship

[Excerpt] Last month, the Supreme Court wrapped up it 2019-2020 term with a flurry of significant rulings.

The court confirmed that Congress and state attorneys general may subpoena third parties for evidence when legitimately investigating a sitting president; held that the executive branch must engage in reasoned decision-making when rescinding administrative protections for a vulnerable population (i.e., beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program); and defined the scope of the president's power to remove officials from high office.

The court also clarified that federal anti-discrimination employment protections extend to LGBTQ workers; held that states may ...


The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens Jan 2020

The Empty Chair: Reflections On An Absent Justice, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux Jan 2020

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Articles

No abstract provided.


The Failure Of The Criminal Procedure Revolution, William T. Pizzi Jan 2020

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Articles

No abstract provided.


Spoiler Alert: When The Supreme Court Ruins Your Brief Problem Mid-Semester, Margaret Hannon Sep 2019

Spoiler Alert: When The Supreme Court Ruins Your Brief Problem Mid-Semester, Margaret Hannon

Articles

Partway through the winter 2019 semester,1 the Supreme Court ruined my favorite summary judgment brief problem while my students were working on it. I had decided to use the problem despite the Court granting cert and knowing it was just a matter of time before the Court issued its decision. In this Article, I share some of the lessons that I learned about the risks involved in using a brief problem based on a pending Supreme Court case. I conclude that, while I have not typically set out to base a problem on a pending Supreme Court case, doing ...


Janus's Two Faces, Kate Andrias Jun 2019

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further ...


Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker Jun 2019

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.


Neglecting Nationalism, Gil Seinfeld May 2019

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely ...


Second Redemption, Third Reconstruction, Richard A. Primus Jan 2019

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of ...


Justice Kennedy And The First Amendment, David L. Hudson Jr. Jan 2019

Justice Kennedy And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

This essay reviews some of Justice Anthony Kennedy’s most significant contributions to First Amendment jurisprudence. These include his calls for absolute protection for pure political speech, his strong protection for commercial speech, his distaste for campaign finance reform laws that censored speech, his general concern for the silencing of sexual expression, his coercion test in Establishment Clause cases, and his significant failure in the public-employee free-speech decision Garcetti v. Ceballos.


Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll Jan 2019

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature ...


The Most Revealing Word In The United States Report, Richard Primus Jan 2019

The Most Revealing Word In The United States Report, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that ...


Procompetitive Justifications In Antitrust Law, John M. Newman Jan 2019

Procompetitive Justifications In Antitrust Law, John M. Newman

Articles

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an "open question," even an "absolute mystery." Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers ...


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson Nov 2018

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws ...


Abortion Rights And The Kavanaugh Nomination, John M. Greabe Jul 2018

Abortion Rights And The Kavanaugh Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Last week, President Trump nominated federal appeals court judge Brett Kavanaugh to fill the Supreme Court seat opened by the retirement of Justice Anthony Kennedy. Immediately, coverage of the nomination focused on abortion and whether Judge Kavanaugh's confirmation would spell the end of the constitutional right recognized in Roe v. Wade. Let's explore why."


The Federalist Society Majority, Lawrence Baum, Neal Devins Jul 2018

The Federalist Society Majority, Lawrence Baum, Neal Devins

Popular Media

No abstract provided.


Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, J. J. Prescott Jul 2018

Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, J. J. Prescott

Articles

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as ‘‘civil’’ in character—and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil ...


Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe Jun 2018

Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe

Law Faculty Scholarship

[exerpt] "Examine a timelier topic: the court's decision to effectively punt on the major religious freedom and partisan gerrymandering cases it was poised to decide this term. For the court's restrain in these cases may have some relation to our turbulent political times."


Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas Jun 2018

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post ...


Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz Apr 2018

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.


Access To The Justices’ Papers: A Better Balance, Susan Demaine Apr 2018

Access To The Justices’ Papers: A Better Balance, Susan Demaine

Articles by Maurer Faculty

This article explores the history of Supreme Court Justices’ papers and their status as private property. It discusses questions of access, the public’s interest in understanding the Court and its decisions, and the effect of the Justices’ papers on scholarship and popular research. Several options for encouraging greater openness are proposed.


The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias Mar 2018

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more ...


Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn Jan 2018

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer ...


The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger Jan 2018

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in ...


Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran Dec 2017

Moving Beyond Lassiter: The Need For A Federal Statutory Right To Counsel For Parents In Child Welfare Cases, Vivek S. Sankaran

Articles

In New York City, an indigent parent can receive the assistance of a multidisciplinary legal team—an attorney, a social worker, and a parent advocate—to defend against the City’s request to temporarily remove a child from her care. But in Mississippi, that same parent can have her rights to her child permanently terminated without ever receiving the assistance of a single lawyer. In Washington State, the Legislature has ensured that parents ensnared in child abuse and neglect proceedings will receive the help of a well-trained and well-compensated attorney with a reasonable caseload. Yet in Tennessee, its Supreme Court ...


Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos Nov 2017

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we ...


Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran Oct 2017

Child Welfare's Scarlet Letter: How A Prior Termination Of Parental Rights Can Permanently Brand A Parent As Unfit, Vivek S. Sankaran

Articles

In many jurisdictions, once a parent has her rights terminated to one child, the State can use that decision to justify the termination of parental rights to another child. The State can do so regardless of whether the parent is fit to parent the second child. This article explores this practice, examines its origins, and discusses its constitutional inadequacies.


Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen Sep 2017

Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

4 p.

"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT ...