Supreme Court of the United States Commons^™

The Cobra Effect: Kisor, Roberts, And The Law Of Unintended Consequences, Patrick Warczak Jr.

Akron Law Review

With its decision in Kisor v. Wilkie, the U.S. Supreme Court was expected to overturn Auer v. Robbins, under which courts are to defer to agencies’ interpretations of their own regulations. This was an expected precursor to the Court eventually overturning Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., which prescribes judicial deference to agency interpretations of statutes the agency administers. The Court instead chose to limit but not overturn Auer and leave Chevron untouched. This leaves lower courts with the challenge of determining when and how to properly apply Auer deference. But the Court’s decision …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

The Uneasy Partnership: The Balance Of Power Between Congress And The Supreme Court In Interpretation Of The Civil War Amendments, Emil Lippe Jr.

Akron Law Review

The basic thesis of this article is that the enforcement clauses of the thirteenth,' fourteenth, 2 and fifteenth 3 amendments have imposed strong affirmative duties upon the United States Congress and the Supreme Court. These duties, due to their very nature, must be exercised in tandem with each other toward the overall goal of the Civil War Amendments: the guarantee that the civil rights of no American be denied him on the basis of race, color, or previous condition of servitude. In addition, a special type of constitutional stare decisis operates to prevent both branches from contracting the rights guaranteed …

Executive Privilege: A Review Of Berger, R. H. Clark

Akron Law Review

RAOUL BERGER HAS ONCE AGAIN placed within a solidly professional framework an issue of considerable public interest and debate. As was the case with impeachment,' Berger's scholarly study on executive privilege brings to the controversy surrounding the issue a much needed analytical construct and massing of evidence which can only result in a greater level of general understanding. Although it is not accurate to suggest that Berger is neutral on the topic, since he published a significant study as far back as 1965 attacking the concept, 2 his method of massing every conceivable argument and piece of evidence on both …

Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski

Akron Law Review

"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …

The Reaffirmation Of Federalism As A Viable Limitation Upon The Commerce Power, Randy R. Koenders

Akron Law Review

"Throughout its history, the constitutional basis of the FLSA has remained anchored in the Commerce Clause. However, despite the legitimacy of that purpose, the FLSA has been the subject of constant attacks since its inception, the most fervent of which has been the challenge to its constitutionality on state sovereignty grounds.

"Two recent United States Supreme Court cases construing the constitutionality of the FLSA and its amendments reflect not only the changing judicial posture toward extension of the Act to matters of state concern, but also the differing attitudes toward extension of the Commerce Clause itself."

Sixth Amendment; Right Of Confrontation; Unavailalbe Witness; State V. Roberts, Christopher C. Manthey, Carol G. Simonetti

Akron Law Review

"THE SIXTH AMENDMENT to the Constitution states that "[iln all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him .... ." This seems simple and absolute, but case law has proven it to be neither; almost every phrase has been dissected and interpreted by courts and commentators. In fact, there may be more law review articles on this subject than there are cases.1 Some of the questions that could be asked are: What is meant by "all criminal prosecutions?" Does this require confrontation in preliminary hearings? Does "shall enjoy the …

Equal Protection; Sex Discrimination; Veterans' Preference Statutes, Feeney V. Massachusetts, Eloise Taylor

Akron Law Review

"Historically, the armed services have been predominantly male. The result has been that the operation of veterans' preferences has placed women as a class at a particular disadvantage in comparison to men when in or entering into civil service.' To nullify this stigma, the first successful challenge to veterans' preference, Feeney v. Massachusetts,' was litigated."

Death Penalty; Cruel And Unusual Punishment; Individualized Sentencing Determination; Lockett V. Ohio; Bell V. Ohio, James C. Ellerhorst

Akron Law Review

“In Bell v. Ohio and Lockett v. Ohio the United States Supreme Court found the sentencing provisions of the Ohio capital punishment statute to be incompatible with the eighth and fourteenth amendments which prohibit cruel and unusual punishment. These two opinions represent the most recent attempt by the Supreme Court to explain what elements must be included in a constitutionally valid capital punishment statute.”

Commerce Clause; Privileges And Immunities Clause; State Hiring; Discrimination Against Nonresidents; Hicklin V. Orbeck, Donna N. Kemp

Akron Law Review

"In Hicklin v. Orbeck, the United States Supreme Court unanimously held' that Alaska's statute entitled "Local Hire Under State Leases"' violates the Constitution due to its discriminatory effect on nonresidents. Basing its decision on the Privileges and Immunities Clause,' the Court found that there was insufficient justification for the extensive discrimination against nonresidents required by the Act because the unemployment problem to be alleviated by the legislation was not due to a great influx of nonresident jobseekers. Rather, the Court attributed the problem to the fact that a large percentage of the unemployed in Alaska lack sufficient education and job …

First Amendment; Freedom Of Speech; Obscenity; Pinkus V. United States, Cary Douglass Caesa

Akron Law Review

“In its latest attempt to define a workable standard for obscenity rulings, the United States Supreme Court has held that children may not be included in a court's instruction as to the social group to whom the material would or would not be obscene. However, the Court held that sensitive persons and deviant groups may be included without unduly lowering the threshold of a finding of obscenity. Thus, Pinkus v. United States clarified the "community" whose judgment should define obscenity.”

First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz

Akron Law Review

"The decision of Metpath, Inc. v. Imperato is indicative of the growing trend of the judiciary toward affording "commercial speech" the protective shield of the first amendment. As shown by Metpath, where the concern is advertising by a medical clinic, speech with commercial overtones is afforded protection where a public interest in the subject and content of the speech is demonstrated. However, the perimeters of such protection have not been defined by this or previous decisions."

Hiding Behind The Constitution: The Supreme Court And Procedural Due Process In Cleveland Board Of Education V. Loudermill, Jennifer Jaff

Akron Law Review

This term, the Supreme Court had an opportunity to affirm the approach of the plurality in Arnett v. Kennedy in Cleveland Board of Education v. Loudermill. In Arnett, Justice Rehnquist's plurality opinion articulated the rule that statutorily-created entitlements can be limited by and conditioned upon the procedural rules that accompany those entitlements.

This article argues that the Supreme Court should have adopted Justice Rehnquist's approach in Arnett because it articulates a clear rule of law. Such clarity would have two effects. First, holders of entitlements would know what procedures they would be afforded at the time the entitlement was granted …

Escobedo And Miranda Revisited, Arthur J. Goldberg

Akron Law Review

Shortly before the close of the 1983 term, the Supreme Court of the United States decided two cases, U.S. v. Gouveia and New York v. Quarles, which in effect overruled Escobedo v. Illinois and undermined Miranda v. Arizona.

Pennsylvania V. Union Gas Company: The Supreme Court Employs The Wrong Means To Reach The Proper End, Christopher A. Brodman

Akron Law Review

This casenote reviews the facts of Union Gas, the history of eleventh amendment jurisprudence, and the purposes of CERCLA. The note critically analyzes the Supreme Court's approach to evading eleventh amendment immunity. Finally, the note contemplates the impact of Union Gas on CERCLA and eleventh amendment law.

Of Flags And Menorahs: The Power Of Individual And Governmental Symbolic Speech, Mark F. Kohler

Akron Law Review

The aim of this article will be to explore the nature of symbolic speech, both individual and governmental. Using Johnson and Allegheny County as a backdrop, four themes will emerge from the article. First, both individuals and government speak and speak powerfully through symbols and symbolic conduct. Second, medium-based regulation of individual speech should receive careful judicial scrutiny. Third, unlike individual symbolic expression, governmental symbolic speech is subject to substantial content-based restrictions. Finally, careful distinctions must be drawn between government-initiated symbolic speech and governmental endorsement of individual symbolic speech.

Holland V. Illinois: Sixth Amendment Fair Cross-Section Requirement Does Not Preclude Racially-Based Peremptory Challenges, Debra L. Dippel

Akron Law Review

This note recaps the Supreme Court's previous decisions regarding defendant's objections to jury composition, including both equal protection and fair cross-section requirement analyses. It also discusses Holland, examines the various opinions in the case, and reviews the arguments for and against abolishing peremptory challenges. Finally, the note proposes a solution for the questions which Holland leaves unanswered.

Three Variations Of The Supreme Court's Legal Mind, Albert Lebowitz

Akron Law Review

With their independence, the Justices emerged, not, as Madison imagined them, a unified definition of reason but with diverging strains of legal mindedness that, as they almost inevitably clashed with each other, developed that added strength which emerges from dialectic. Madison's vision may have been too simple.

Constitutional theory is heavily concentrated in the area of judicial review, and the three issues raised in Marbury v. Madison are still subjects of heated debate and controversy. It is remarkable how topical this opinion remains.

Edmonson V. Leesville Concrete Company: Pre-Empting Prejudice, Andrea K. Huston

Akron Law Review

In Edmonson v. Leesville Concrete Co., the United States Supreme Court decided the issue of whether parties in a civil case may use their peremptory challenges to exclude black venirepersons from the jury.

This Note will discuss the various limitations that courts have placed on the use of peremptory challenges, and the position of the Supreme Court. This Note will also discuss the Court's expansion of the state action doctrine, and the impact Edmonson will have on future cases.

The Constutionality Of Punitive Damages: Pacific Mutual Life Insurance Company V. Cleopatra Haslip, Thomas P. Mannion

Akron Law Review

This Note examines the history of the constitutional challenges to the doctrine of punitive damages. Next, this Note explores the Supreme Court's decision in Haslip. Finally, this Note examines the ramifications of the Haslip decision.

Coming Out Is A Free Pass Out: Boy Scouts Of America V. Dale, N. Nicole Endejann

Akron Law Review

This Note discusses the three Supreme Court cases that have delineated the battle between public accommodation laws and an organization’s freedom of expressive association: Roberts v. United States Jaycees, Board of Directors of Rotary International v. Rotary Club of Duarte, and New York State Club Association, Inc. v. City of New York. Specifically, this Note focuses on the development of the balancing test which courts use to protect these two constitutional freedoms. This Note then analyzes the Supreme Court’s decision in Boy Scouts of America v. Dale, pointing out its deviations from the Roberts Trilogy. Finally, this Note explains the …

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Akron Law Review

The legal proceedings following the 2000 election had their moments of humor. The oral argument in Bush v. Gore may have produced the most guffaws, as Joseph Klock struggled to name the Justices of the Supreme Court, or even to limit himself to those currently living. But if one finds humor in the absurd, the comic highpoint came 34 hours later (34 hours!) when the Court released its decision. Network “runners”―presumably the employees who had distinguished themselves at company picnics, the network softball league, or summer corporate challenge races―grabbed copies, dashed outside, and handed them to on-air reporters who were …

Dismantling The Private Enforcement Of The Privacy Act Of 1974: Doe V. Chao, Haeji Hong Esq.

Akron Law Review

A divided Supreme Court recently decided in Doe v. Chao that the federal government’s disclosure of the social security number, while constituting a violation of the Privacy Act of 1974 (the “Privacy Act”), was not enough to compensate the victim. After examining the civil remedy section of the Privacy Act, the Supreme Court ruled that the victim must also prove that he sustained actual damages before recovering the statutory minimum damage of $1,000. This latest decision will greatly affect the enforcement of the Privacy Act by private citizens and reduce the effectiveness of the already much criticized Privacy Act.

This …

The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn

Akron Law Review

Part I of this essay covers an early period on the Court when Justice O’Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O’Connor’s attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O’Connor’s respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule Roe v. Wade. Part …

Standing In The Mud: Hein V.Freedom From Religion Foundation, Inc.

Akron Law Review

In 1968, in Flast v. Cohen, the Supreme Court first set forth the requirements that a plaintiff must satisfy to have standing to challenge a government action in federal court solely based on his or her status as a taxpayer. The subsequent history of taxpayer standing is littered with precedents supported by unclear reasoning. Hein v. Freedom from Religion Foundation, Inc. represents the Supreme Court’s latest effort to address the limits of taxpayer standing in an Establishment Clause challenge. Unfortunately, the Court in Hein maintained its tradition of providing perplexing decisions in taxpayer standing cases. In Hein, a plurality of …

Rationalizing The Constitution: The Military Commissions Act And The Duboius Legacy Of Ex Parte Quirin, Chad Deveaux

Akron Law Review

Alexander Hamilton famously characterized the Judiciary as the “least dangerous” branch. It “has no influence over either the sword or the purse” and thus “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But this perceived safeguard has sometimes proven to be the institution’s undoing. Faced with the prospect of appearing impotent, the Supreme Court has, on occasion, played the role of doctrinal apologist. The Court has bent seemingly immutable constitutional prerogatives to sanction Executive action when a contrary ruling would likely go unheeded.

Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Review

This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …

Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo

Akron Law Review

Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …

Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia's Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Akron Law Review

James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected …

Finding Nino: Justice Scalia's Confrontation Clause Legacy From Its (Glorious) Beginning To (Bitter) End, Joëlle Anne Moreno Professor

Akron Law Review

Until very recently, Justice Scalia has steered the Court’s modern confrontation jurisprudence. However, as discussed below, his leadership is increasingly threatened by deep divisions on questions of historical accuracy, constitutional interpretation, and the practical realities of twenty-first century criminal prosecutions.