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Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford 2018 University of Nevada, Las Vegas, William S. Boyd School of Law

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Notre Dame Law Review Online

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O’Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very ...


Feminist Judgments And Women's Rights At Work, Gillian Thomas 2018 ACLU Women’s Rights Project

Feminist Judgments And Women's Rights At Work, Gillian Thomas

Notre Dame Law Review Online

The history of the law’s treatment of working women is largely a history of the law’s treatment of women’s bodies. Overwhelmingly created by male judges, that jurisprudence considers women from a remove—their physicality, their reproductive capacity, their stature, their sexuality—eclipsing meaningful consideration of their lived experience, on or off the job. As vividly illustrated by so many of the alternative rulings contained in Feminist Judgments, that erasure resulted in Supreme Court decisions that—even when they came out the “right” way, that is, in favor of the female litigant—squandered opportunities for advancing sex equality ...


Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino 2018 University of Cincinnati College of Law

Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino

Notre Dame Law Review Online

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail.

The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in which ...


Revisiting Roe To Advance Reproductive Justice For Childbearing Women, Elizabeth Kukura 2018 Drexel University Thomas R. Kline School of Law

Revisiting Roe To Advance Reproductive Justice For Childbearing Women, Elizabeth Kukura

Notre Dame Law Review Online

The rewritten opinions that comprise Feminist Judgments together provide a powerful critique of judicial decisionmaking that renders certain women’s experiences invisible. By reimagining key Supreme Court decisions, the opinion writers unmask various ways that gendered conceptions of social roles are deeply entrenched in the rulings and reasoning of the highest court of the United States. The authors also show, through their alternative texts, that opinions which are celebrated as women’s rights victories can nevertheless impede progress toward equality and liberty.

Kimberly Mutcherson’s rewritten concurrence in Roe v. Wade illustrates the missed opportunities and unintended consequences that have ...


How Is Sex Harassment Discriminatory?, Noa Ben-Asher 2018 Pace University Elisabeth Haub School of Law

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Notre Dame Law Review Online

Feminist Judgments takes us to a key moment in the history of sexual harassment law. In Meritor Savings Bank v. Vinson, the Supreme Court recognized for the first time that both quid pro quo and hostile environment sexual harassment violate Title VII of the Civil Rights Act of 1964. It also held that to be actionable under Title VII, sexual advances must be (1) “unwelcome” and (2) “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The latter part of the test (“sufficiently severe or pervasive”) fits well into the ...


Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam 2018 Penn State Dickinson Law

Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam

Dickinson Law Review

President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though ...


The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky 2018 Penn State Dickinson Law

The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang 2018 University of Pennsylvania Law School

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

Faculty Scholarship at Penn Law

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 ...


Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson 2018 University of Michigan Law School

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation ...


State Action And The Constitution's Middle Band, Louis Michael Seidman 2018 Georgetown Law

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there ...


The Security Court, Matt Steilen 2018 University of Maryland Francis King Carey School of Law

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security ...


Section 1: Moot Court: Nieves, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


2018-2019 Supreme Court Preview: Schedule And Panel Members, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

2018-2019 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


2018-2019 Supreme Court Preview: Contents, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

2018-2019 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 6: Separation Of Powers, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 6: Separation Of Powers, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 7: Civil Rights, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 7: Civil Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 5: Business Law, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 5: Business Law, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 2: Trump And The Court, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 2: Trump And The Court, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 3: Property Rights, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 3: Property Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 4: Criminal Law, Institute of Bill of Rights Law at The College of William & Mary School of Law 2018 College of William & Mary Law School

Section 4: Criminal Law, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


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