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The Cobra Effect: Kisor, Roberts, And The Law Of Unintended Consequences, Patrick Warczak Jr. 2021 The University of Akron

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 ...


Attempting—And Failing—To Balance Fairness And Efficiency In The Arbitral System: How Arbitration Institutions Are Defeating The Purpose Of Arbitration, Hannah N Myslik 2021 Texas A&M University School of Law (Student)

Attempting—And Failing—To Balance Fairness And Efficiency In The Arbitral System: How Arbitration Institutions Are Defeating The Purpose Of Arbitration, Hannah N Myslik

Texas A&M Law Review

The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate.

The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions ...


The Rhetoric Of Racism In The United States Supreme Court, Kathryn Stanchi 2021 UNLV Boyd School of Law

The Rhetoric Of Racism In The United States Supreme Court, Kathryn Stanchi

Boston College Law Review

This Article is the first study that categorizes and analyzes all the references to the terms “racist,” “racism,” and “white supremacy” throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court’s rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme ...


Statistically Speaking: Restrictive Changes To Fair Housing Act Disparate Impact Liability, Mitchell E. Feldman 2021 Boston College Law School

Statistically Speaking: Restrictive Changes To Fair Housing Act Disparate Impact Liability, Mitchell E. Feldman

Boston College Law Review

Disparate impact liability, a theory for pleading discrimination allegations, has been an important tool in the battle for housing equity. Disparate impact claims, however, have undergone drastic changes since their inception in 1971. Most recently, the Department of Housing and Urban Development issued a final rule amending the pleading requirements for litigants alleging disparate impact housing claims. The new rule threatens to undermine the development of disparate impact claims under the Fair Housing Act (FHA) of 1968, which gives plaintiffs access to relief, specifically in cases of lending discrimination. This Note analyzes the rule in light of a seminal 2015 ...


Unduly Burdening Abortion Jurisprudence, Mark Strasser 2021 William & Mary Law School

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test ...


Shortlist To Nominee, Gabrielle Martin 2021 Susquehanna University

Shortlist To Nominee, Gabrielle Martin

Senior Scholars Day

Moving from the shortlist to the nominee on the United States Supreme Court is impacted by many things. It is well established that factors such as Ivy League law school attendance, age, race, gender and presidents viewing nominations as a representation of their policy preferences. This study aims to further analyze how institution of legal education, race and gender impacts the likelihood that someone who is on the shortlist to becoming the actual nominee. In this context, shortlist is referring to a list of selected candidates from which a final choice is made. Actual nominee refers to the candidate that ...


Discussing Privacy In Sec Subpoena Practice After Carpenter V. United States, William A. Ballentine 2021 Chicago-Kent College of Law

Discussing Privacy In Sec Subpoena Practice After Carpenter V. United States, William A. Ballentine

Chicago-Kent Law Review

No abstract provided.


067— Chiafalo V. Washington And Colorado Department Of State V. Bacca And The Obsolescence Of The Electoral College, Colin Beasor 2021 SUNY Geneseo

067— Chiafalo V. Washington And Colorado Department Of State V. Bacca And The Obsolescence Of The Electoral College, Colin Beasor

GREAT Day

Every four years, the United States uses an electoral college to select its the next president and vice-president. Each state is allocated a number of Electors based on the number of representatives they have in Congress. In the U.S. Supreme Court's 2019 term, the Court decided on two cases regarding a state's ability to punish "faithless Electors," or presidential Electors who vote contrary to their state's popular vote. In Chiafalo v. Washington and Colorado Department of State v. Baca, the Court ruled that states have the constitutional authority to punish faithless Electors, explaining that presidential Electors ...


Judicial Review Of Visa Petition Revocations: A “Precedential Cascade”, Nicole Arata 2021 Boston College Law School

Judicial Review Of Visa Petition Revocations: A “Precedential Cascade”, Nicole Arata

Boston College Law Review

The Secretary of Homeland Security has the power to revoke approved visa petitions pursuant to the grant of authority in 8 U.S.C. § 1155, part of the Immigration and Nationality Act (INA). The circuit courts disagree over whether the Secretary’s decisions under this provision are subject to judicial review. On April 7, 2020, the United States Court of Appeals for the Fourth Circuit, in Polfliet v. Cuccinelli, held that the Secretary’s authority under 8 U.S.C. § 1155 is discretionary. In doing so, the Fourth Circuit joined nine other circuit courts to find that visa petition revocation ...


Nondelegation Of Major Questions, Clinton T. Summers 2021 University of Arkansas, Fayetteville

Nondelegation Of Major Questions, Clinton T. Summers

Arkansas Law Review

The Supreme Court has many tools at its disposal to address improper delegations of legislative power by Congress to the executive branch. Two of these tools are the nondelegation doctrine and the major questions doctrine. The nondelegation doctrine is a sledgehammer. Able to declare entire statutory provisions unconstitutional, its ability to do a lot of damage is perhaps the reason the Court never uses it. Indeed, the Court has only used it twice, both times in 1935. Although it’s old and rusty, the Court continues to keep it in the toolbox just in case. Since 1935, the Court has ...


A Costly Victory: June Medical, Federal Abortion Legislation, And Section 5 Of The Fourteenth Amendment, Thomas J. Molony 2021 Elon University, Elon

A Costly Victory: June Medical, Federal Abortion Legislation, And Section 5 Of The Fourteenth Amendment, Thomas J. Molony

Arkansas Law Review

The United States Supreme Court’s recent major abortion ruling in June Medical Services L.L.C. v. Russo was a win for abortion rights supporters, but a costly one. Although the June Medical Court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital, a majority of the Justices—and most importantly, Chief Justice Roberts, whose concurrence constitutes the Court’s holding—stressed that Casey’s constitutional standard for pre-viability abortion regulations is not the amorphous balancing test the Court suggested in Whole Woman’s Health v. Hellerstedt, but a more deferential one ...


Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. McConnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel 2021 Cleveland-Marshall College of Law, Cleveland State University

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were ...


Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town 2021 Former United States Attorney for the Northern District of Alabama and current Vice President and General Counsel at Gray Analytics

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every ...


Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon 2021 University of Richmond

Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon

Cleveland State Law Review

The Supreme Court’s 2019 decision in United States v. Haymond shone a light on a practice that has not yet received attention commensurate with its significance: the re-imprisonment of individuals on supervised release without a jury trial. At first blush, the decision is most notable for setting bounds on the government’s ability to re-imprison individuals on supervised release without observing the constitutional rights normally available to defendants in criminal prosecutions. However, examination of the opinions reveals that the decision’s immediate doctrinal impact was quite limited. Moreover, although the three opinions issued in the case reflected disagreements among ...


Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia 2021 Northwestern Pritzker School of Law

Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia

Northwestern Journal of Law & Social Policy

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020 ...


Abandoning The Subjective And Objective Components Of A Well-Founded Fear Of Persecution, Grace Kim 2021 Northwestern Pritzker School of Law

Abandoning The Subjective And Objective Components Of A Well-Founded Fear Of Persecution, Grace Kim

Northwestern Journal of Law & Social Policy

Current asylum law requires that asylum seekers prove that they have a “well-founded fear of persecution.” However, a “well-founded fear”—the evidentiary standard in asylum cases—has remained ambiguous and difficult to apply in asylum cases. In Cardoza-Fonseca, the Supreme Court held that an asylum seeker can establish a well-founded fear with less than a 50% probability of future persecution. Although the Supreme Court sought to clarify the meaning of a well-founded fear, the decision has complicated the evidentiary standard by implying that it consists of two parts: the subjective component and objective component. The “subjective” component—the asylum seekers ...


Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero 2021 University of New Mexico - School of Law

Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.


The Customer Is Always Right: Trademark Law And Generic Website Names In U.S. Patent And Trademark Office V. Booking.Com B.V., Marina F. Rothberg 2021 Boston College Law School

The Customer Is Always Right: Trademark Law And Generic Website Names In U.S. Patent And Trademark Office V. Booking.Com B.V., Marina F. Rothberg

Boston College Law Review

In 2020, in U.S. Patent and Trademark Office v. Booking.com B.V., the Supreme Court clarified that the owner of a website with a descriptive domain name could trademark the name, even if it were styled “generic.com,” as long as it had acquired secondary meaning to consumers. Justice Breyer, in his dissent, vigorously argued that this ruling would limit competition. He claimed that allowing Booking.com to trademark its brand name, which contains terms that competitors use to describe similar business activities, would essentially be giving it a monopoly. This Comment supports the majority’s decision, as ...


The Expansive Scope Of The Ministerial Exception After Our Lady Of Guadalupe School V. Morrissey-Berru, Allison R. Ferraris 2021 Boston College Law School

The Expansive Scope Of The Ministerial Exception After Our Lady Of Guadalupe School V. Morrissey-Berru, Allison R. Ferraris

Boston College Law Review

On July 8th, 2020, the United States Supreme Court held in Our Lady of Guadalupe School v. Morrissey-Berru that two parochial school teachers, Kristen Biel and Agnes-Morrissey-Berru, were ministers for purposes of the First Amendment’s ministerial exception. This meant that the First Amendment barred their respective employment discrimination actions notwithstanding the merit of their claims. When the Court first recognized the ministerial exception in 2012, in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, it determined that an employee qualified as a minister through a multi-factor, totality of the circumstances analysis. Yet, in reaching its conclusion in ...


Corruption In Capsules: How It Is Legal For Companies To Put Harmful Ingredients In Vitamins And Dietary Supplements, Emily Leggiero 2021 Kutztown University of Pennsylvania

Corruption In Capsules: How It Is Legal For Companies To Put Harmful Ingredients In Vitamins And Dietary Supplements, Emily Leggiero

English Department: Research for Change - Wicked Problems in Our World

The vitamin and supplement industry has increased exponentially in profits as well as potential products on the market since the turn of the century. However, these products are not regulated, nor do they undergo any premarket clinical research or testing. Public health is compromised by vitamins and supplements that are available for American consumption that is disproportionately unregulated to their chemically similar counterparts. This wicked problem is facilitated through the combination of historical legislative definitions that has since been distorted for corrupt administrative gain through the allotment of corporate expenditures. Company disbursements are made to the same policymakers that create ...


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