Judges Commons^™

The Curious Case Of Justice Neil Gorsuch, Justin Burnworth

Pace Law Review

Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …

Can Superman Save The Supreme Court After Dobbs? Using Analogical Reasoning To Teach The American People The Superpower Of Stare Decisis, Brandon Stump

Cleveland State Law Review

In this Article, I propose that in this post-Dobbs America, if Americans are ever able to believe in, or even understand the magnitude of the Supreme Court’s power, practitioners, scholars, and educators should rely on the power of analogical reasoning, something attorneys are taught beginning their first weeks of law school. Using the power of analogy, we should take the simple story of Superman to explain the magnitude of the power held by the Supreme Court and the critical role that stare decisis must play in the Court’s decision-making. Perhaps if we explain legal principles and the judiciary by …

Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re

Notre Dame Law Review Reflection

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …

The Current State Of Abortion Law In Virginia Leaves Victims Of Domestic And Sexual Violence Vulnerable To Abuse: Why Virginia Should Codify The Right To Abortion In The State Constitution†, Courtenay Schwartz

University of Richmond Law Review

All people must have access to safe and legal reproductive health care—especially victims of sexual and domestic violence who can and do become pregnant because of the violence they experience. This year, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in Dobbs v. Jackson Women’s Health Organization. In doing so, the Supreme Court held that the Constitution does not protect the right to an abortion. Though abortion access is currently protected in Virginia, this could change with each new General Assembly session. To guard against the danger that this poses to …

Taxing The New With The Old: Capturing The Value Of Data With The Corporate Income Tax In Virginia, Coleman H. Cheeley

University of Richmond Law Review

The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.”In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth due …

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions from the past year. Part I of this Article addresses taxes administered by the Virginia Department of Taxation (the “Tax Department” or “Department”). Part II covers local taxes, including real and tangible personal property machinery and tools, license taxes, and other discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact …

Preface, Alexandra M. Voehringer

University of Richmond Law Review

The University of Richmond Law Review proudly presents the thirty-eighth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has served as a guiding tool for practitioners and students to stay abreast of recent legislative, judicial, and administrative developments in the Commonwealth of Virginia. Today, the Annual Survey is the most widely read publication of the Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Foreword, The Honorable L. A. Harris Jr.

University of Richmond Law Review

“Your writing is so bad you will not be considered for Law Review and there is some question about your admittance to Law School.”

Life is strange and ironic. In 1974 as a second year law student at the T. C. Williams School of Law at the University of Richmond, I was invited to submit an article to determine if I would be permitted to serve on the Law Review. A member of the Law Review evaluated my article and met with me. In summation he said my writing was so bad that I would not be considered for Law …

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article discusses Supreme Court of Virginia and, for the first time, Court of Appeals of Virginia analysis of procedural issues. The Article further discusses revisions to civil procedure provisions of the Code of Virginia and Rules of the Supreme Court of Virginia in the last year.

The Article first addresses opinions of the supreme court and court of appeals, then new legislation enacted during the 2023 General Assembly Session, and finally revisions to the Rules of the Supreme Court of Virginia.

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Northwestern University Law Review

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Confirm Julie Rikelman For The First Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Four Maurer School Of Law Students Selected As 2023 Stevens Fellows, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four Indiana Law students have been selected as Stevens Fellows, the John Paul Stevens Foundation accounced today (June 20). Selection as a Stevens Fellow allows students to receive critical financial support while participating in unpaid summer legal internships serving the public interest.

Named after the late U.S. Supreme Court Justice, the John Paul Stevens Foundation is dedicated to promoting public interest and social justice values in the next generation of American lawyers.

Change We Can Believe In: The Seventh Circuit's Exposure Of Inadequate Environmental Review In Protect Our Parks V. Buttigieg, P. Nicholas Greco

Villanova Environmental Law Journal

No abstract provided.

The Nil Glass Ceiling, Tan Boston

University of Richmond Law Review

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern

University of Richmond Law Review

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the …

Disinformation And The Defamation Renaissance: A Misleading Promise Of “Truth”, Lili Levi

University of Richmond Law Review

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students all heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press–protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti–disinformation frame could tip the scales and generate a majority on the Court to dismantle …

Erisa’S Fiduciary Fantasy And The Problem Of Mass Health Claim Denials, Katherine T. Vukadin

University of Richmond Law Review

Over 100 million Americans face healthcare debt. Most of those in debt have health insurance, with the debt often springing from services people thought were covered. Before and even after receiving care, those seeking coverage must run a gauntlet of obstacles such as excessive pre-authorization requests, burdensome concurrent review of care, and retrospective review, which claws back payment after a treatment is pre-authorized and payment made. Increasingly, this procedural tangle leaves people with unwarranted and unexpected medical bills, quickly spiraling them into debt.

Who polices health insurers’ claims practices? What keeps insurance companies from designing overly burdensome pre-authorization requirements or …

Executive Order 14036: Promoting Competition?, Holly E. Fredericksen

University of Richmond Law Review

Four million Americans left their jobs in July 2021. By the end of that month, the number of open jobs reached an all-time high: 10.9 million. Employees are walking out the door in record numbers as part of a trend so remarkable, we even gave it a name: the Great Resignation. With 4.3 million Americans quitting their jobs in January 2022 and 11.3 million job openings, the Great Resignation is only gaining momentum and showing no signs of slowing down.

And as a consequence of employees exiting in droves, employers are hurting. According to The Work Institute, turnover costs employers …

Going The Extra Mile: Expanding The Promoting Affordable Housing Near Transit Act, Emily R. Casey

University of Richmond Law Review

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban …

Prison Housing Policies For Transgender, Non-Binary, Gender-Non-Conforming, And Intersex People: Restorative Ways To Address The Gender Binary In The United States Prison System, John G. Sims

University of Richmond Law Review

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

The Nagging In Our Ears And Original Public Meaning, Perry Dane

Marquette Law Review

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views— theories of “original public meaning”—that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.