Why Justice Kavanaugh Should Continue Justice Kennedy’S Death Penalty Legacy—Next Step: Expanding Juvenile Death Penalty Ban, 2020 University of Miami Law School
Why Justice Kavanaugh Should Continue Justice Kennedy’S Death Penalty Legacy—Next Step: Expanding Juvenile Death Penalty Ban, Alli Katzen
University of Miami Law Review
As science and society both progress, Supreme Court rulings should reflect those changes. The national consensus has been gradually moving away from the use of the death penalty, particularly as applied to offenders between the ages of eighteen and twenty-five. Research clarifies that the brain is not fully developed in the areas most directly linked to culpability until after this age range. The combination of these factors should compel the Court to raise the minimum age for death sentences, but the shifting bench presents unpredictability
The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter
Cleveland State Law Review
As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid ...
Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, 2020 Cleveland State University
Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon
Cleveland State Law Review
The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from ...
Decoding Judicial Reasoning In China: A Comparative Empirical Analysis Of Guiding Cases, 2020 Chicago-Kent College of Law
Decoding Judicial Reasoning In China: A Comparative Empirical Analysis Of Guiding Cases, Runhua Wang
Cleveland State Law Review
The judicial system in China recently started using legal precedents—known as guiding cases—as a new legal source to eliminate adjudicative inconsistency. Guiding cases (“GCs”) present the current judicial reasoning to some extent and can be used to predict the future of judicial reasoning in China. What are GCs? What legal issues do GCs address? How do they address legal issues? How do GCs affect the legal system and adjudication in China? This Article answers these questions with empirical evidence and comparisons to judicial reasoning in the United States. It is the first empirical research providing a systematic review ...
A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), 2020 University of Pennsylvania Law School
A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), Charles Eric Hintz
Faculty Scholarship at Penn Law
When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements tracking the elements of a cause of action. Given the infinitely higher stakes involved in criminal cases, one might think that at least as robust a requirement would exist in that context. But, in fact, a weaker pleading standard reigns. Under the governing interpretation of Federal ...
Fmc Corp. V. Shoshone-Bannock Tribes, 2020 Alexander Blewett III School of Law at the University of Montana
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Public Land & Resources Law Review
In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction ...
Brief Of Amici Curiae Professors Ronald A. Cass, David F. Forte, James L. Huffman, Donald J. Kochan, Jesse J. Richardson And Reed Watson In Support Of Petitioners, 2020 Cleveland-Marshall College of Law, Cleveland State University
Brief Of Amici Curiae Professors Ronald A. Cass, David F. Forte, James L. Huffman, Donald J. Kochan, Jesse J. Richardson And Reed Watson In Support Of Petitioners, David F. Forte, Ronald A. Cass, James L. Huffman, Donald J. Kochan, Jesse J. Richardson, Reed Watson
Law Faculty Briefs
The Court of Federal Claims ruled that the Klamath, Yurok and Hoopa (hereafter Tribes) reserved water rights in the Klamath River Basin are of a volume at least equal to the amount of water the Environmental Protection Agency has determined to be necessary to trigger endangered species protection. In the absence of an adjudication in state or federal court and contrary to the long history of federal deference (both by Congressional enactment and judicial precedent) to state adjudication of water rights, the Federal Circuit affirmed and thus preempted, without the participation of affected parties including petitioners, the State of Oregon ...
First Amendment “Harms”, 2020 BYU Law
First Amendment “Harms”, Stephanie H. Barclay
Indiana Law Journal
What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition ...
Classifying Systems Of Constitutional Review: A Context-Specific Analysis, 2020 Indiana University Maurer School of Law
Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan
Indiana Journal of Constitutional Design
Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the ...
Revisiting A Classic Problem In Statutory Interpretation: Is A Minister A Laborer?, 2020 Hofstra University
Revisiting A Classic Problem In Statutory Interpretation: Is A Minister A Laborer?, Tammy Gales, Lawrence M. Solan
Georgia State University Law Review
This study presents a new analysis of an iconic United States Supreme Court case, Holy Trinity Church v. United States (1892). The question in Holy Trinity Church concerned whether a law making it illegal to pay the transportation of a person entering the U.S. under contract to perform “labor or service of any kind” applied to a wealthy Manhattan church that had paid to bring its new rector from England to New York. The Supreme Court unanimously ruled that the law did not apply to the church’s contract, relying first on the ordinary meaning of “labor” and second ...
Gerrymandering Justiciability, 2020 Georgetown University Law Center
Gerrymandering Justiciability, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
In addition, the Supreme Court often has the option of making a Democratic gerrymander become justiciable by characterizing it as racial rather than partisan in nature. In cases like Shaw, where white electoral strength is reduced through the creation of majority-minority voting districts, the Court intervenes to hold those districts unconstitutional, finding them to be justiciable because they are racial gerrymanders. True, the Court will uphold some racial gerrymanders that benefit minorities, and invalidate some that benefit whites. But on balance, whites will derive a net benefit from treating racial gerrymanders as justiciable. And by gerrymandering the line that separates ...
Waiving Federal Sovereign Immunity In Original Actions Between States, 2020 Alexander Blewett III School of Law, University of Montana
Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer
University of Michigan Journal of Law Reform
There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing ...
What Can We Expect Of Law And Religion In 2020?, 2020 University of Nevada, Las Vegas William S. Boyd School of Law
What Can We Expect Of Law And Religion In 2020?, Leslie C. Griffin
SMU Law Review Forum
The United States is in a religion-friendly mood—or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.
Supreme Court Journalism: From Law To Spectacle?, 2020 Loyola University Chicago, School of Law
Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Carmody Tilley
Washington and Lee Law Review
Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several ...
How Conscientious Objectors Killed The Draft: The Collapse Of The Selective Service During The Vietnam War, 2020 Hanyang University School of Law
How Conscientious Objectors Killed The Draft: The Collapse Of The Selective Service During The Vietnam War, Bill Raley
Cleveland State Law Review
This Article argues that a key-but-overlooked factor in the Vietnam-era breakdown of the draft system was the Supreme Court’s expansion of the religious conscientious objector ("CO") exemption. It asserts that the Court understood that the CO exemption violated the Establishment Clause, but rather than strike the exemption down, the Court avoided the constitutional issue by interpreting away the religious element of CO statutes. The Article concludes that the Court’s rulings caused CO exemptions to skyrocket, which in turn caused the draft system to collapse toward the end of the Vietnam War.
2001 Supreme Court Redux, 2020 American University Washington College of Law
2001 Supreme Court Redux, Mary Stevens
Sustainable Development Law & Policy
No abstract provided.
Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, 2020 Cleveland-Marshall College of Law, Cleveland State University
Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith
Law Faculty Briefs
Lurking behind the regulatory issues presented by this appeal is a concerted effort to displace the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"), with a novel approach that would trivialize a law's burden on religion. The Court should not indulge it.
The critics' argument suffers from several analytical defects that can be remedied by (1) a proper constitutional understanding of RFRA's relationship to the Establishment Clause; (2) an accurate understanding of how the Religion Clauses safeguard third-party interests; and (3) the correct application of these understandings to the Final Rules.
Steiner V. Utah: Designing A Constitutional Remedy, 2020 University of Pennsylvania Law School
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
Faculty Scholarship at Penn Law
In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations ...
Let’S Talk About Sex: A Discussion Of Sexual Orientation Discrimination Under Title Vii, 2020 Boston College Law School
Let’S Talk About Sex: A Discussion Of Sexual Orientation Discrimination Under Title Vii, Courtney E. Ruggeri
Boston College Law Review
On July 18, 2018, the Eleventh Circuit Court of Appeals held, in Bostock v. Clayton County Board of Commissioners, that Title VII does not protect against discrimination on the basis of sexual orientation in the workplace. To the Eleventh Circuit, sexual orientation discrimination is distinct from sex discrimination, which the statute explicitly prohibits. Many courts continue to follow this traditional rule and agree with the Eleventh Circuit’s decision. The Second and Seventh Circuits, however, have instead followed the guidance of the Equal Opportunity Employment Commission (EEOC), the federal agency that enforces Title VII, and held the opposite. The Supreme ...
Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, 2020 Cleveland-Marshall College of Law, Cleveland State University
Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber
Law Faculty Briefs
The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it ...