Law Commons^™

Introduction, Rosemary Salomone

St. John's Law Review

(Excerpt)

This issue of the St. John’s Law Review includes several Articles that were initially presented at the Law Review’s Fall 2022 virtual symposium. The symposium commemorated the 40th anniversary of the Supreme Court’s landmark decision in Plyler v. Doe as a starting point for discussing current immigration law in the United States. It was dedicated in memory of Professor Michael A. Olivas, who held the William B. Bates Distinguished Chair in Law (Emeritus) and was the Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Professor Olivas, a passionate advocate of …

Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider

Marquette Law Review

Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one …

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

Mother Nature On The Run: The Sec, Climate Change Disclosure, And The Major Questions Doctrine, J. Robert Brown, Jr.

San Diego Law Review

The Securities and Exchange Commission (SEC or Commission) has proposed a rule that addresses the disclosure needs of investors with respect to climate change. The proposal would require that public companies tell investors about the risks to their business associated with climate change and explain the system and strategy of governance for monitoring those risks. In addition, the proposal would mandate the disclosure of certain greenhouse gas emissions.

The SEC’s proposal arrived contemporaneously with the Supreme Court’s announcement of the “major questions” doctrine. A deliberate attempt to limit the authority of the executive branch, the doctrine would restrict agencies from …

Exploring Democratic Accountability In The Administrative State, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay seeks to add to the ongoing effort of defining accountability in practical terms by presenting an inconspicuous but directly on-point case study about administrative accountability. This is the story of the United States Department of Agriculture farmer committee system, which seems to be the one and only experiment in federal administrative elections. The experiment, however, has been a failure both as a matter of practical policy and constitutional validity. Indeed, in advance of legislative debate on the 2023 Farm Bill, a USDA advisory committee publicly recommended that Congress abolish the committee system. Nevertheless, there is much to learn …

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …

Jane Crow Constitutionalism, Evan D. Bernick

Northern Illinois University Law Review

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

The Equal Rights Amendment And The Equality Act: Closing Gaps Post-Bostock For Sexual Orientation And Gender Identity Minorities, Sarah Blazucki

University of the District of Columbia Law Review

In 2020, the Supreme Court held in Bostock v. Clayton County that the “because of sex” protection in Title VII of the Civil Rights Act of 1964 (Title VII) included an individual’s “homosexual and transgender status.”1 This landmark decision expanded employment protections under the law, for the first time providing broad federal protections to sexual orientation and gender identity minorities.2 It was a sweeping decision, granting protections to millions of people.3 Yet many worry the protections are incomplete, for several reasons. First, the Court explicitly used the language “homosexual and transgender,”4 potentially leaving unresolved if other minority sexual orientations and …

There Is No Bruen Step Zero: The Law-Abiding Citizen And The Second Amendment, Jeff Campbell

University of the District of Columbia Law Review

In District of Columbia v. Heller, 1 the Supreme Court transformed Second Amendment law by adopting an originalist approach in gun-rights cases. Breaking from its previous cases, the Court recognized an individual right to bear arms, at least within the home.2 The Court’s method, while not fully specified, focused on history to determine the meaning of the Second Amendment. 3 But despite the abrupt change in the law, the anticipated revolution never really came. Lower courts turned away nearly every challenge to existing gun laws, sometimes by declining to extend Heller outside the home,4 sometimes by finding that the laws …

Justice Ginsburg's Journey To Dissents And Influence On Reproductive Rights, Songo Wawa

University of the District of Columbia Law Review

Justice Ruth Bader Ginsburg’s advocacy for gender equity, evidenced by her nationally famous dissents, began long before her 27 years on the Supreme Court. Prior to becoming a Supreme Court Justice, Attorney Ginsburg’s early experiences of gender inequity led to her advocacy for women’s rights as a law professor and as co-founder of the American Civil Liberties Union’s Women’s Rights Project. 1 Attorney Ginsburg’s legal strategy encompassed her pragmatic approach to voicing her opinions about gender equality. 2 In Gonzales v. Carhart, both her dissent announcement and written dissent demonstrated Justice Ginsburg’s commitment to women’s reproductive autonomy.3 Without Justice Ginsburg’s …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

All Faculty Scholarship

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman

ConLawNOW

This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …

Abortion In America After Roe: An Examination Of The Impact Of Dobbs V. Jackson Women’S Health Organization On Women’S Reproductive Health Access, Natalie Maria Caffrey

Senior Theses and Projects

This thesis will examine the limitations in access to abortion and other necessary reproductive healthcare in states that are hostile to abortion rights, as well as discuss the ongoing litigation within those states between pro-choice and pro-life advocates. After analyzing the legal landscape and the different abortion laws within these states, this thesis will focus on the practical consequences of Dobbs on women’s lives, with particular attention to its impact on women of color and poor women in states with the most restrictive laws. The effect of these restrictive laws on poor women will be felt disproportionately due to their …

Examining The Effects Of Student Loan Forgiveness And The Christian Perspective, Sarah Rogers

Helm's School of Government Conference - American Revival: Citizenship & Virtue

On August 24, 2022, President Joe Biden announced his plan for federal student loan forgiveness. The program allows individuals who make less than $125,000 a year and families under $250,000 relieve up to $10,000 of their loan debt. Those who fall under the Pell Grant program are able to relieve up to $20,000 of their debt. The reactions to this “revolutionary” program were mixed. Typically, those who the program would directly affect were very enthusiastic about this idea while those, most notably Republicans, were less than thrilled. While the idea is good in theory, the execution of debt forgiveness will …

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Comment: The Unjust Side Of Civil Asset Forfeiture In Illinois: Innocent Victims And Corrupted Incentives, Sarah Farwick

Northern Illinois University Law Review

Under the broad scope of modern civil asset forfeiture, law enforcement agencies routinely deprive citizens of their property without ever formally charging them with a crime. This system diminishes the ideal values of American justice, yet the Supreme Court has long held that civil asset forfeiture is constitutional, leaving prospects of judicial reform unlikely. Therefore, it is crucial that individual states take action to protect their citizens by abolishing the use of civil asset forfeiture. In 2017, the Illinois General Assembly attempted to reform its civil asset forfeiture system, but upon close analysis and application of the statute, it is …

The Supreme Court's Third Shift: Policy, Precedent, And Public Opinion Via The Shadow Docket, Taraleigh Davis

Theses and Dissertations

The Supreme Court is attracting more attention to its emergency docket – cases decided with neither briefing nor oral argument. These cases, while seemingly focused on immediate, individual problems, could potentially create policy in a way not necessarily intended or approved by Congress. Because the Court is particularly reliant on institutional support for effective policymaking and because we know that people support the Court, at least in part, due to its legalistic nature and its specific procedures, some are concerned that making decisions using this alternative, less public process as well as relying on these hastily decided cases as precedent …

The U.S. Government Taking Under Eminent Domain: When Just Compensation Is Unjust (Comment), Michael Perez

The Scholar: St. Mary's Law Review on Race and Social Justice

The true effects of private takings do not occur in a vacuum and are not solely academic in nature. The consequence of losing property implicates loss of income, loss of value in residual property, and loss of familial land. The importance of protecting the rights of individual land-owners becomes increasingly apparent when analyzing the effect of the taking.

This comment will explore how the government’s taking of private property occurs—including how the government has loosened restrictions and procedural hurdles. The analysis will focus specifically on processes, policies, and statutes, created and used by the federal government to facilitate takings necessary …

The Legacy Of Trust Promises: Native American Healthcare (Note), Hailey Trawick

The Scholar: St. Mary's Law Review on Race and Social Justice

From European colonialism to the establishment of the United States, the rights, history, and independence of Native Americans have been systematically stripped away. The American government expanded rapidly, forcibly displacing indigenous populations from their native lands and moving them to reservations with inferior resources and space. During a forced removal, often instituted by treaties between American Indian tribes and the federal government, government officials offered protection and access to resources in exchange for vast tribal land. Although treaty-making with American tribes ended over a century ago, their deleterious and often broken promises continue to haunt us.

Part I of this …

Using Nlp To Model U.S. Supreme Court Cases, Katherine Lockard, Robert Slater, Brandon Sucrese

SMU Data Science Review

The advantages of employing text analysis to uncover policy positions, generate legal predictions, and inform or evaluate reform practices are multifold. Given the far-reaching effects of legislation at all levels of society these insights and their continued improvement are impactful. This research explores the use of natural language processing (NLP) and machine learning to predictively model U.S. Supreme Court case outcomes based on textual case facts. The final model achieved an F1-score of .324 and an AUC of .68. This suggests that the model can distinguish between the two target classes; however, further research is needed before machine learning models …

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

Against Capital Punishment, Zac Bright, Ben Austin (Editor)

Brigham Young University Prelaw Review

Capital punishment has a strong legal precedence in the United States. Capital punishment has been a penal option for those who commit conspicuously wrong acts. For such acts, the punishment seems to be proportional to the crime. In addition to the punishment’s adherence to proportionality, capital punishment mitigates problematic outcomes.

This paper advocates, however, that capital punishment should be classified as “cruel and unusual punishment.” Such violation of the eighth amendment delegitimizes capital punishment. Consequently, The Federal Death Penalty Act of 1994 should no longer be considered a valid law because of its constitutional violation.

The Fourth Amendment In A Digital Age: Defining Boundaries In Law Enforcement Surveillance Of The Home, Josh Hoffman, Jared Xia

Brigham Young University Prelaw Review

As our country enters a new digital age, emerging technologies have increased the ability of law enforcement to monitor American citizens more closely. The tracking of suspects through thermal imaging, video monitoring, and cell phone GPSs are just a few examples of the unlocked potential now available to investigating authorities. When directed at the home, these technologies allow for unprecedented encroachment of our most intimate sphere of daily life. With this accelerating prevalence of technology in surveillance practices comes the need to reassess what boundaries the Fourth Amendment defines for our privacy. This paper explores the application of the Reasonable …

The Court And The Private Plaintiff, Elizabeth Beske

Articles in Law Reviews & Other Academic Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo

College of Law Faculty Publications

Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of all cases referencing the Constitutional Convention provides evidence that history can constrain judicial interpretation of the Constitution.

As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes …

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Law Faculty Publications

On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.