Why Not Limit Neil Gorsuch — And All Supreme Court Justices — To 18-Year Terms?, 2017 University of Georgia School of Law
Why Not Limit Neil Gorsuch — And All Supreme Court Justices — To 18-Year Terms?, Lori A. Ringhand, Paul M. Collins Jr.
Popular Media
Legal scholars and political scientists increasingly question whether life tenure remains a good idea for Supreme Court justices. While scholars disagree about the exact numbers, our Supreme Court justices are serving longer and longer terms; presidents have incentives to choose younger and younger nominees; and the justices themselves appear to delay retirement in the hope of having an ideologically compatible president select their replacements. Moreover, the confirmation process has become increasingly contentious, culminating last year in Senate Republicans refusing to even grant a hearing to President Barack Obama’s nominee, Merrick Garland.
As a result, many scholars propose a shift to …
Religious Freedom In The United States: ‘When You Come To A Fork In The Road, Take It', 2017 University of Dayton
Religious Freedom In The United States: ‘When You Come To A Fork In The Road, Take It', Charles J. Russo
Charles J. Russo
As expansive as the Supreme Court’s view of the First Amendment religion clauses has been, its jurisprudence has demonstrated that its rulings do not always achieve the outcomes desired by proponents of religious freedom.3 From the perspective of supporters of religious freedom, this realization lends credence to the preceding wry comment by Justice Scalia. This article details the Court’s inconsistent treatment of Christianity, and people of faith broadly, especially in educational settings. These inconsistent judicial outcomes run the risk of increasingly marginalizing matters of faith and conscience in the public square.4 As discussed in this article, disputes over the status …
Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, 2017 University of Dayton
Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo
Charles J. Russo
A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools1 to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,2 a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,3 the Court struck down the Defense of Marriage Act thereby requiring …
Making Room At The Inn: Implications Of 'Christian Legal Society V. Martinez' For Public University Housing Professionals, 2017 University of Northern Iowa
Making Room At The Inn: Implications Of 'Christian Legal Society V. Martinez' For Public University Housing Professionals, Michael D. Waggoner, Charles J. Russo
Charles J. Russo
The Supreme Court ruling in Christian Legal Society v. Martinez, its most important case to date on student associational activities, upheld a policy at a public law school in California that required recognized student organizations (or clubs) to admit "all-comers" even if they disagreed with organizational goals and values, rather than retracing the work of Moran and her colleagues, who examined related issues such as religious expression in public areas of residence halls, this article analyzes the potential impact of CLS, since membership in campus organizations clearly overlaps with the kinds of issues that students and housing professionals deal …
The Supreme Court On Abortion - A Dissenting Opinion, 2017 St. John's University School of Law
The Supreme Court On Abortion - A Dissenting Opinion, Patrick T. Conley, Robert J. Mckenna
The Catholic Lawyer
No abstract provided.
Bob Nagel And The Emptiness Of The Supreme Court Standards Of Review, 2017 University of Colorado Law School
Bob Nagel And The Emptiness Of The Supreme Court Standards Of Review, Larry Alexander
University of Colorado Law Review Forum
In this piece, written to honor Robert Nagel on his retirement, I focus on the arguments he made in a student note on the Supreme Court's rational basis standard of review.
Precedent And Speech, 2017 Notre Dame Law School
Precedent And Speech, Randy J. Kozel
Randy J Kozel
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, 2017 Duke Law
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, G. Edward Powell
Duke Journal of Constitutional Law & Public Policy Sidebar
American patent law grants inventors the exclusive right, within U.S. territory, to make, sell, use, and import their patented inventions. In response to attempts to circumvent the right by making the components of an invention within the U.S. and exporting them for assembly abroad, Congress passed 35 U.S.C. § 271(f), prohibiting “suppl[ying] . . . from the United States all or a substantial portion of the components of a patented invention . . . to actively induce the combination of such components outside of the United States . . . .” Petitioner Life Technologies supplied one commodity component of a …
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, 2017 Duke Law
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, Jessica Edmundson
Duke Journal of Constitutional Law & Public Policy Sidebar
In drawing election maps, racial gerrymandering separates minority groups, packing them into specific districts to weaken the power of their votes. In Wittman v. Personhuballah, the Supreme Court held that a group of Virginia congressmen that neither lived in, nor represented a district did not have standing to defend gerrymandering in that district. Although the Court had the opportunity to address the substantive issues in the case, it did not, leaving a substantial gap in racial gerrymandering jurisprudence. This commentary explores the consequences of this gap and argues that the Court should not find a legally cognizable right in …
Brief Of The National Association Of Criminal Defense Lawyers, Et Al As Amici Curiae Supporting Petitioner, Mcwilliams V. Dunn (U.S. March 6, 2017) (No. 16-5294)., 2017 University of Cincinnati College of Law
Brief Of The National Association Of Criminal Defense Lawyers, Et Al As Amici Curiae Supporting Petitioner, Mcwilliams V. Dunn (U.S. March 6, 2017) (No. 16-5294)., Janet Moore
Faculty Articles and Other Publications
We submit this brief to make three important points. First, Ake itself clearly and unambiguously held as a matter of due process that indigent capital defendants must be provided with independent expert assistance upon a reasonable showing of need. The Court was unanimous on this point and swept aside aging precedent that had held provision of neutral assistance was adequate.
Second, Ake was hardly a revolutionary decision. As the Court noted, many states already provided expert assistance. In the first six years after Ake, numerous states explicitly held independent expert assistance must be provided upon an adequate showing of need. …
Trending @ Rwu Law: Dean Yelnosky's Post: 24: Dean Style 3-6-2017, 2017 Roger Williams University School of Law
Trending @ Rwu Law: Dean Yelnosky's Post: 24: Dean Style 3-6-2017, Michael Yelnosky
Law School Blogs
No abstract provided.
Elonis V. United States: Why The Supreme Court Punted On Free Speech, 2017 Pepperdine University
Elonis V. United States: Why The Supreme Court Punted On Free Speech, David Barney
Pepperdine Law Review
In Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme Court had a chance to interpret the boundaries of a federal statute forbidding threats transmitted in interstate or foreign commerce and to consider the constitutional implications of regulating such threats. In its statutory analysis, the Court hesitated to declare how the law should be applied, and instead, only provided guidance as to how it should not be. It likewise refrained from any further analysis on constitutional grounds entirely. This contest winning student case note explores the opinion in depth and comments on its potential implications.
The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, 2017 U.S. Supreme Court
The Robert L. Levine Distinguished Lecture: A Conversation With Justice Ruth Bader Ginsburg And Professor Aaron Saiger, Ruth Bader Ginsburg, Aaron Saiger
Fordham Law Review
PROFESSOR AARON SAIGER: It’s a signal honor for Fordham Law School and a personal honor for me and a pleasure to have Justice Ginsburg here tonight. We want to thank you for coming. I think I will not reiterate all of the thanks Dean Diller has offered, except to say that we are very grateful to the Levine family and deeply indebted to the students of the Law Review who have made tonight happen. The format of the evening is as follows: I will ask questions and the Justice will answer them.
Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, 2017 University of Michigan Law School
Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas
Articles
First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …
Legislative Exhaustion, 2017 William & Mary Law School
Legislative Exhaustion, Michael Sant’Ambrogio
William & Mary Law Review
Legislative lawsuits are a recurring by-product of divided government. Yet the Supreme Court has never definitively resolved whether Congress may sue the executive branch over its execution of the law. Some scholars argue that Congress should be able to establish Article III standing when its interests are harmed by executive action or inaction just like private parties. Others, including most prominently the late Justice Antonin Scalia, argue that intergovernmental disputes do not constitute Article III “cases” or “controversies” at all. Rather, the Framers envisioned the political branches resolving their differences through nonjudicial means.
This Article proposes a different approach to …
Mccrory V. Harris: Constitutional Prohibitions On Racial Classifications And The Requirements Of The Voting Rights Act In Redistricting, 2017 Duke Law
Mccrory V. Harris: Constitutional Prohibitions On Racial Classifications And The Requirements Of The Voting Rights Act In Redistricting, Alex Dietz
Duke Journal of Constitutional Law & Public Policy Sidebar
In McCrory v. Harris, the Supreme Court is faced with yet another redistricting case: Are the first and twelfth Congressional Districts in North Carolina the result of impermissible racial gerrymandering? The parties' dispute centers around two questions: In what circumstances is race the predominant factor in a state legislature's redistricting plan? And in what circumstances is the use of race as a predominant factor in redistricting plans an impermissible racial gerrymander? This Commentary will provide a summary and analysis of the arguments presented for the Court's review, and argue that both North Carolina Congressional Districts should be struck down …
Moore V. Texas: Balancing Medical Advancements With Judicial Stability, 2017 Duke Law
Moore V. Texas: Balancing Medical Advancements With Judicial Stability, Emily Taft
Duke Journal of Constitutional Law & Public Policy Sidebar
In Moore v. Texas, the Supreme Court will consider whether the Eighth Amendment requires States to adhere to a particular organization’s most recent clinical definition of intellectual disability in determining whether a person is exempt from the death penalty under Atkins v. Virginia and Hall v. Florida. Generally, the Supreme Court has carved away at the death penalty with each new case it takes. This commentary argues that the Supreme Court should not continue that trend in this case and should find for Texas because the state’s intellectual disability determination is consistent with the Eighth Amendment under Atkins …
Flight Risk Or Danger To The Community? Rodriguez And The Protection Of Civil Liberties In The U.S. Immigration System, 2017 Duke Law
Flight Risk Or Danger To The Community? Rodriguez And The Protection Of Civil Liberties In The U.S. Immigration System, Charlie Kazemzadeh
Duke Journal of Constitutional Law & Public Policy Sidebar
Upon arrival to the United States, foreign nationals are required to prove beyond a doubt that they comply with the various requirements for admission into the country. For those who fail to meet this standard, there are only two options: accept immediate removal to their country of origin, or fight removal. For many who contest their deportation, their fate is civil incarceration until their case is adjudicated, which can take several years. The case of Jennings v. Rodriguez addresses the constitutionality of prolonged civil incarceration without the access of mandatory, periodic bond hearings for these individuals.
Textualism And Originalism In Constitutional Interpretation, 2017 University of New Hampshire School of Law
Textualism And Originalism In Constitutional Interpretation, John M. Greabe
Law Faculty Scholarship
[Excerpt] "In a 2016 lecture at the Case Western Reserve University School of Law, Judge Neil Gorsuch warmly praised former Supreme Court Justice Antonin Scalia's approach to constitutional interpretation. Because President Trump has nominated him to serve on the Supreme Court, it is important to understand the approach Judge Gorsuch favors."
A House Built On Shifting Sands: Standing Under The Fair Housing Act After Thompson V. North American Stainless, 2017 Duke Law
A House Built On Shifting Sands: Standing Under The Fair Housing Act After Thompson V. North American Stainless, Eric Vanderhoef
Duke Journal of Constitutional Law & Public Policy Sidebar
For decades, the Supreme Court construed standing under the Fair Housing Act broadly; any party could bring suit as long as it met Constitutional Standing requirements. In January 2011, in Thompson v. North American Stainless, the Court restricted standing under Title VII—a statute with similar empowering language to the Fair Housing Act. The Court will address Fair Housing Act standing post-Thompson in Bank of America Corp. v. City of Miami. This commentary argues that standing under the Fair Housing Act should be restricted. Additionally, it argues that the allegations of the Plaintiff-Respondent, City of Miami, of widespread reductions in tax …