Supreme Court of the United States Commons^™

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

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 …

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 …

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have …

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to …

Public Financing Of Elections In The States, Nicholas Meixsell

Honors Theses

In the US, there is a history of the courts striking down campaign finance reform measures as unconstitutional. As such, there are few avenues remaining for someone who is interested in 'clean government' reforms. One such avenue is publicly financed elections, where the state actually provides funding for campaigns. These systems can be quite varied in the restrictions and contingencies they attach to the money, and for examples one has to look no further than the states There are many states that have some form of public financing for elections, and by looking at the different states' systems we are …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Clarence Thomas, Fisher V. University Of Texas, And The Future Of Affirmative Action In Higher Education, Scott D. Gerber

University of Richmond Law Review

No abstract provided.

Navigating The Unknown: Why Scotus Ought To Again Affirm That Achieving True Diversity In Higher Education Is A Compelling Interest That Satisfies Strict Scrutiny When It Rehears Fisher, Kenrick Frank Roberts

University of the District of Columbia Law Review

On June 29th, 2015, the Supreme Court agreed to once again hear oral arguments in Fisher. This decision is troubling to supporters of Affirmative Action policies because of the Court's indistinguishable motivation for hearing the case a second time. This Note argues that theCourt must continue to allow race-based considerations in higher education admissions policies. Part I takes a look at the beginnings of affirmative action and the effects of past discrimination on the educational attainment of minorities. Part II charts the case law related to affirmative action in higher education. Part III tracks how the meaning of narrowly-tailored has …

Skilling: More Blind Monks Examining The Elephant, Julie Rose O'Sullivan

Fordham Urban Law Journal

No abstract provided.

King V. Burwell: The Supreme Court's Missed Opportunity To Cure What Ails Chevron, Vanessa L. Johnson, Marisa Finley, J. James Rohack

Journal of Legislation

The article outlines the construct of the ACA’s premium assistance tax credits, explores the legal controversies surrounding these subsidies, uses the tax subsidies cases to demonstrate the flaws in the Chevron framework, and argues that the Supreme Court should have framed its King v. Burwell analysis in a way that would have cured, rather than ignored, the ails of Chevron.

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the definition of …

Confronting The Myth Of State Court Class Action Abuses Through An Understanding Of Heuristics And A Plea For More Statistics, Patricia W. Moore

Faculty Articles

The Supreme Court heard six cases involving class actions this term. One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time. Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" justified removal of the case (which was based on state law and filed in state court) to federal court.

The charge of a "flood" of "abusive state court class actions" echoed the same rhetoric that CAFA's supporters used a decade ago in their ultimately successful efforts to …

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

Daimlerchrysler V. Cuno: An Escape From The Dormant Commerce Clause Quagmire?, S. Mohsin Reza

University of Richmond Law Review

No abstract provided.

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

NYLS Law Review

No abstract provided.

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

All Faculty Scholarship

In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …

Can Mental Health Professionals Predict Judicial Decisionmaking? Constitutional And Tort Liability Aspects Of The Right Of The Institutionalized Mentally Disabled To Refuse Treatment: On The Cutting Edge, Michael L. Perlin

Touro Law Review

No abstract provided.

Interstate Commerce Commission V. American Trucking Associations, Inc.

Touro Law Review

No abstract provided.