Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (1291)
- Supreme Court of the United States (733)
- Courts (685)
- Judges (413)
- Civil Rights and Discrimination (291)
-
- State and Local Government Law (243)
- Jurisprudence (235)
- Criminal Law (228)
- First Amendment (219)
- Criminal Procedure (184)
- Legal History (174)
- Fourteenth Amendment (158)
- Legislation (142)
- Law and Society (132)
- Social and Behavioral Sciences (132)
- Law and Politics (129)
- Litigation (114)
- Fourth Amendment (110)
- Law and Race (94)
- Civil Procedure (89)
- Election Law (84)
- Administrative Law (81)
- Intellectual Property Law (81)
- Labor and Employment Law (76)
- Jurisdiction (71)
- Law and Gender (71)
- Environmental Law (66)
- Law Enforcement and Corrections (62)
- Health Law and Policy (61)
- Institution
-
- Touro University Jacob D. Fuchsberg Law Center (587)
- Selected Works (295)
- Maurer School of Law: Indiana University (195)
- Georgetown University Law Center (128)
- University of Richmond (93)
-
- SelectedWorks (86)
- New York Law School (80)
- Vanderbilt University Law School (69)
- Fordham Law School (68)
- Pepperdine University (62)
- Duke Law (61)
- University of Baltimore Law (57)
- University of Georgia School of Law (56)
- Boston University School of Law (47)
- St. Mary's University (44)
- Saint Louis University School of Law (42)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (42)
- The University of Akron (41)
- American University Washington College of Law (39)
- Cleveland State University (37)
- University of Miami Law School (37)
- Notre Dame Law School (36)
- University of Colorado Law School (36)
- Chicago-Kent College of Law (35)
- Loyola Marymount University and Loyola Law School (31)
- University of Kentucky (31)
- University of Maryland Francis King Carey School of Law (28)
- University of Cincinnati College of Law (26)
- Roger Williams University (25)
- St. John's University School of Law (22)
- Publication Year
- Publication
-
- Touro Law Review (472)
- Faculty Scholarship (180)
- Indiana Law Journal (175)
- Scholarly Works (138)
- Georgetown Law Faculty Publications and Other Works (94)
-
- All Faculty Scholarship (67)
- Pepperdine Law Review (59)
- Vanderbilt Law Review (55)
- University of Richmond Law Review (53)
- Law Faculty Publications (46)
- Faculty Publications (42)
- Journal Articles (38)
- NYLS Law Review (37)
- Journal of Race, Gender, and Ethnicity (36)
- Articles (34)
- Faculty Articles (32)
- Fordham Law Review (32)
- Loyola of Los Angeles Law Review (30)
- Law Faculty Scholarly Articles (28)
- Articles & Chapters (26)
- Alan E Garfield (25)
- Faculty Articles and Other Publications (25)
- Law Faculty Articles and Essays (21)
- Nevada Law Journal (20)
- Martin A. Schwartz (19)
- Supreme Court Overviews (19)
- Akron Law Review (17)
- Articles in Law Reviews & Other Academic Journals (17)
- Cleveland State Law Review (16)
- Faculty Scholarship at Penn Carey Law (16)
- Publication Type
Articles 1 - 30 of 2990
Full-Text Articles in Law
Justices Citing Justices, Jay D. Wexler
Justices Citing Justices, Jay D. Wexler
Faculty Scholarship
Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …
The Counterdemocratic Difficulty, Aziz Z. Huq
The Counterdemocratic Difficulty, Aziz Z. Huq
Northwestern University Law Review
Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation …
Consequences And The Supreme Court, Aaron Tang
Consequences And The Supreme Court, Aaron Tang
Northwestern University Law Review
May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.”
This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. …
The Misunderstood History Of Textualism, Tara Leigh Grove
The Misunderstood History Of Textualism, Tara Leigh Grove
Northwestern University Law Review
This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to …
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Pepperdine Law Review
Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …
Forgotten "People": Reviving Textualism In The Fourth Amendment, Peter C. Douglas
Forgotten "People": Reviving Textualism In The Fourth Amendment, Peter C. Douglas
San Diego Law Review
For more than a century, the Supreme Court has struggled to develop a coherent and sustainable theory of the Fourth Amendment. Before the ink is dry on a new Fourth Amendment opinion, it is cabined, abrogated, or outright overruled. As one scholar has commented, the “evolution of Fourth Amendment doctrine over the past century bears a striking resemblance to Hamlet’s descent into insanity.” While the Court vacillates between “theories” of the Fourth Amendment that might bring clarity to a difficult body of constitutional law, the rights it bespeaks lie vulnerable and unprotected. This Article argues that the problem flows from …
Racial Transitional Justice In The United States, Yuvraj Joshi
Racial Transitional Justice In The United States, Yuvraj Joshi
All Faculty Publications
For years, the United States government has endorsed transitional justice approaches abroad while ignoring the need for transitional justice at home. Recently, racial justice uprisings have shifted U.S.-based discussions of transitional justice, from gazing outward toward the international community to attending to the legacies of slavery, segregation, and white supremacy at home. This chapter demonstrates that the centuries-long oppression of Black Americans is precisely the kind of massive human rights violation that necessitates a systematic transitional justice response. Using historical, legal, and comparative analyses, it reveals that the United States has employed its own versions of transitional justice mechanisms and …
Purchasing Population Growth, Edward W. De Barbieri
Purchasing Population Growth, Edward W. De Barbieri
Indiana Law Journal
State and local lawmakers compete to attract new populations of workers to purchase homes, grow the tax base, and develop local economies. Even before the pandemic, lawmakers used a variety of tax incentives and other legal levers to attract new residents. Increasingly, in some cases bolstered by the Coronavirus Aid, Relief, and Economic Security (CARES) Act funds, local governments are attracting high-paid, well-skilled, remote workers with cash gifts and other direct economic benefits.
Although cash incentives for remote workers have been increasing in popularity, they remain unproven with respect to intended outcomes and have yet to face legal challenge. The …
The Williams Way: Why Roger Williams’ Philosophy Of Religious Liberty Remains Imperative Today, Michael Zigarelli
The Williams Way: Why Roger Williams’ Philosophy Of Religious Liberty Remains Imperative Today, Michael Zigarelli
Eleutheria
To travel the road of religious freedom, a society requires firm guardrails. To the left of the road looms the cliff of “state suppression of religion.” To the right looms the cliff of “state establishment of religion.” During the life of Roger Williams (1603?-1683), the problem in the American colonies was the latter, the inextricable entanglement of religion and civil authority. Known as “The New England Way” in Williams’ colony of Massachusetts Bay, its main tenet of governance was that social stability required religious uniformity. Williams could not disagree more, embarking on a life’s mission to proclaim that government possesses …
A Guide For Our Times: Herbert Hoover's Critique Of Supreme Court Expansion, Matthew Chopp
A Guide For Our Times: Herbert Hoover's Critique Of Supreme Court Expansion, Matthew Chopp
Compass: An Undergraduate Journal of American Political Ideas
Former President Herbert Hoover’s critiques of FDR’s plan to expand the Supreme Court are useful for defending against contemporary calls to enlarge the composition of the Court, such as the Judiciary Act of 2021.
Meaningless Dna: Moore’S Inadequate Protection Of Genetic Material, Natalie Alexander
Meaningless Dna: Moore’S Inadequate Protection Of Genetic Material, Natalie Alexander
Dickinson Law Review (2017-Present)
Moore v. Regents of the University of California represents the seminal case regarding the protection of genetic material. In this case, the California Supreme Court held that patients do not retain property rights in their excised genetic material; instead, informed consent laws serve as genetic material’s only protection. Many states have accepted the Moore court’s decision not to extend property rights to genetic material, and most states choose to protect genetic material through informed consent alone. Moore and informed consent do not adequately protect genetic material, creating unjust results in which “donors” of genetic material have little to no recourse …
Performatives In Argentine Supreme Court Dissents: A Jurilinguistic Proposal For Civilian Change Based On The American Common Law, Mariano Vitetta
Performatives In Argentine Supreme Court Dissents: A Jurilinguistic Proposal For Civilian Change Based On The American Common Law, Mariano Vitetta
Journal of Civil Law Studies
This article explores a linguistic defect in how Argentine Supreme Court dissents are written. The reader of these dissents has a hard time distinguishing between a majority opinion and a dissenting opinion, because dissents are written “as if” they were deciding the case. The confusion results from the use of performative language in dissents when adherence to reality and a plain-language approach require modal verbs reflecting the language of suggestion. This is actually the way dissents are expressed in the United States, the jurisdiction from which the Argentine Supreme Court copied its constitutional design. To make the case against the …
Making It Harder To Challenge Election Districting, Erwin Chemerinsky
Making It Harder To Challenge Election Districting, Erwin Chemerinsky
Voting Rights and Democracy Forum
No abstract provided.
Emergency-Docket Experiments, Edward L. Pickup, Hannah L. Templin
Emergency-Docket Experiments, Edward L. Pickup, Hannah L. Templin
Notre Dame Law Review Reflection
This short Essay is the first to analyze the Court’s recent emer-gency-docket experiments and discuss their effectiveness. We conclude that the Court’s interventions have real benefits: giving emergency cases greater procedure improves transparency, boosts public confidence in the Court, and gives guidance to litigants and lower courts.
But experiments are often iterative—it is unusual to hit the right result the first time. So too with the Court’s emergency-docket tinkering. In tweaking its stay factors, the Justices have failed to give suffi-cient guidance to litigants about how those factors will apply in the future. Plus, in transferring Ramirez from the emergency …
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Indiana Law Journal
This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.
Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court …
Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart
Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart
Indiana Law Journal
Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …
Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger
Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger
The Cardinal Edge
No abstract provided.
Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore
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 Covid-19 Worship Cases Lessons For Governors In Democratic Governance And Transparency Over "Edicts", Robin Fretwell Wilson
The Covid-19 Worship Cases Lessons For Governors In Democratic Governance And Transparency Over "Edicts", Robin Fretwell Wilson
University of St. Thomas Law Journal
No abstract provided.
The Use Of Amicus Briefs To Influence A Supreme Court Decision: Framing Espinoza V. Montana (2020), Anita F. Morgan
The Use Of Amicus Briefs To Influence A Supreme Court Decision: Framing Espinoza V. Montana (2020), Anita F. Morgan
Doctoral Dissertations
The purpose of this qualitative content analysis was to examine how amici curiae frame policy preferences in amicus briefs submitted before the United States Supreme Court in the landmark case, Espinoza v. Montana (2020). The questions addressed in this study were what dominant policy frames do interest groups use to frame policy preference in Espinoza v. Montana (2020), and which (if any) policy frames found in the amicus briefs emerged in the written opinions of the United States Supreme Court?
Five a priori codes based on Semetko and Valkenburg’s (2000) generic frames were used to analyze 18 out of 45 …
The Doctrine Of Contractual Absolution, Marcus Moore
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
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.
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Indiana Law Journal
Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
Indiana Law Journal
Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …
Compelled Speech And Doctrinal Fluidity, David Han
Compelled Speech And Doctrinal Fluidity, David Han
Indiana Law Journal
Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness— a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of …
Compelled Speech And The Regulatory State, Alan K. Chen
Compelled Speech And The Regulatory State, Alan K. Chen
Indiana Law Journal
Since the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the …
Ministerial Employees And Discrimination Without Remedy, Charlotte Garden
Ministerial Employees And Discrimination Without Remedy, Charlotte Garden
Indiana Law Journal
The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, …
The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray
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
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 …
Federal Judicial Power And Federal Equity Without Federal Equity Powers, John Harrison
Federal Judicial Power And Federal Equity Without Federal Equity Powers, John Harrison
Notre Dame Law Review
This Article discusses the ways in which the federal courts do and do not have equity powers. Article III courts have the judicial power, which enables them to apply the law, primary and remedial. Applicable remedial law often includes the law of equitable remedies, so the federal courts have the power and obligation to give remedies pursuant to equitable principles. The law of equitable remedies, written and unwritten, is external to the courts, not created by them, the same way written law is external to the courts. Because the unwritten law of equitable remedies is found largely in judicial practice, …