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Court-Packing: An American Tradition?, Joshua Braver 2020 University of Wisconsin Law School

Court-Packing: An American Tradition?, Joshua Braver

Boston College Law Review

This Article provides the first comprehensive and conceptual account of all increases and decreases to the Supreme Court’s size. In today’s debate over court-packing, proponents assert and opponents concede that there is ample precedent for the tactic. Against this prevailing consensus, I argue that although the Court’s size has changed seven times, court-packing is nearly novel in American history, and it would pose unprecedented dangers if enacted today. I define court-packing as manipulating the number of Supreme Court seats primarily in order to alter the ideological balance of the Supreme Court. Court-packing’s distinct danger is that ...


God’S (Pension) Plan: Erisa Church Plan Litigation In The Aftermath Of Advocate Health Care Network V. Stapleton, Rebecca Miller 2020 Boston College Law School

God’S (Pension) Plan: Erisa Church Plan Litigation In The Aftermath Of Advocate Health Care Network V. Stapleton, Rebecca Miller

Boston College Law Review

The Employee Retirement Income Security Act of 1974 (ERISA) protects the pensions of American workers by placing vesting, funding, and fiduciary obligations on plan sponsors. “Church plans” established and maintained by church organizations, however, are exempt from the provisions of ERISA to avoid entanglement between church and state. After the enactment of ERISA and its church plan exemption, federal agencies and courts long-debated which pension plans qualified as church plans, culminating in the 2017 U.S. Supreme Court decision in Advocate Health Care Network v. Stapleton. In Stapleton, the Supreme Court adopted a broad interpretation of a church plan, under ...


The Forfeiture Forecast After Timbs: Cloudy With A Chance Of Offender Ability To Pay, Rachel J. Weiss 2020 Boston College Law School

The Forfeiture Forecast After Timbs: Cloudy With A Chance Of Offender Ability To Pay, Rachel J. Weiss

Boston College Law Review

On February 20, 2019, the United States Supreme Court handed down a landmark decision in Timbs v. Indiana by unanimously holding that the Eighth Amendment’s Excessive Fines Clause applies to states as incorporated by the Fourteenth Amendment’s Due Process Clause. In so doing, the Court armed state litigants with a seemingly powerful constitutional protection against civil asset forfeiture. In reality, however, the Timbs decision raised far more questions than it resolved. Justice Ginsburg’s majority opinion implicitly endorsed Court precedent that would limit forfeiture assessment to a gross disproportionality standard. Yet the opinion also chronicled the history of ...


A Thirteenth Amendment Approach To The Reauthorization Of The Violence Against Women Act, Kylee M. Petritsch 2020 Lebanon Valley College

A Thirteenth Amendment Approach To The Reauthorization Of The Violence Against Women Act, Kylee M. Petritsch

The Macksey Journal

Violence against a woman turns her into a non-autonomous instrument. The use of violence as a threat against a woman leaves her vulnerable, often times forcing her to do something contrary against their will. Women who experience domestic violence continuously experience threatening situations that result in subordination to their domestic partner. The term "involuntary servitude" listed in the Thirteenth Amendment allows the Amendment to be one of the most powerful, yet underused, provisions of the Constitution of the United States. Although the Amendment was created to abolish slavery against African Americans in the early years of the Republic, scholars have ...


Distinguishing Permissible Preemption From Unconstitutional Commandeering, Edward A. Hartnett 2020 In residence, academic year 2019–20, New York University School of Law; Richard J. Hughes Professor of Constitutional and Public Law and Public Service, Seton Hall University School of Law

Distinguishing Permissible Preemption From Unconstitutional Commandeering, Edward A. Hartnett

Notre Dame Law Review

For years, the preemption doctrine and the anticommandeering doctrine lived in an uneasy tension, with each threatening to consume the other. On the one hand, preemption permits Congress to insist that state law give way to congressional demands. On the other hand, the anticommandeering doctrine prohibits Congress from commandeering state legislatures or state executives. Without some way to establish a boundary between the two, preemption could swallow the anticommandeering doctrine by allowing Congress to control state law. Alternatively, absent some boundary, anticommandeering could swallow preemption by empowering states to refuse to be governed by the commands of federal law. Either ...


Talking About Abortion (Listening Optional), Jennifer W. Reynolds 2020 University of Oregon School of Law

Talking About Abortion (Listening Optional), Jennifer W. Reynolds

Texas A&M Law Review

Whether we can expect others to listen—and whether we choose to listen to others—have become central challenges in handling conflicts around polarized and high-profile political matters. For those who study alternative dispute resolution (“ADR”), these concerns about listening hit especially close to the bone because they implicate some of the most foundational precepts of dispute resolution practice. This paper explores some of these implications in the context of the fight over reproductive rights, with special focus on the “listening dilemma” that people experience when navigating extremely difficult conversations around crucial political entitlements, especially when those entitlements are in ...


Reconceptualizing Hybrid Rights, Dan T. Coenen 2020 University of Georgia School of Law

Reconceptualizing Hybrid Rights, Dan T. Coenen

Boston College Law Review

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so-called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and penumbral ...


Health Policy In The Supreme Court And A New Conservative Majority, Lawrence O. Gostin, Wendy E. Parmet, Sara Rosenbaum 2020 Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

Health Policy In The Supreme Court And A New Conservative Majority, Lawrence O. Gostin, Wendy E. Parmet, Sara Rosenbaum

Georgetown Law Faculty Publications and Other Works

This Viewpoint looks at the range of medical and public health issues that could be adversely affected by appointment of Justice Amy Coney Barrett to the US Supreme Court, including weakening or elimination of the Affordable Care Act, Medicaid work requirements that could reduce eligibility, and reduced reproductive rights and governmental public health emergency powers.


Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr. 2020 Seattle University School of Law

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.


Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey 2020 Seattle University School of Law

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely ...


Enough Is As Good As A Feast, Noah C. Chauvin 2020 Seattle University School of Law

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ...


Defending Bridgegate, George D. Brown 2020 Boston College Law School

Defending Bridgegate, George D. Brown

Washington and Lee Law Review Online

The Supreme Court’s decision in the “Bridgegate” controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision’s potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.


Defending Bridgegate, George D. Brown 2020 Boston College Law School

Defending Bridgegate, George D. Brown

Boston College Law School Faculty Papers

The Supreme Court’s decision in the “Bridgegate” controversy has been the subject of intense debate. It has received strong support. However, some critics assail the decision as representative of a pattern of recent cases in which the Court has shown itself as indifferent to political corruption, if not supportive of it. Somewhat lost in the discussion is the decision’s potential to be the foundation for a seismic re-alignment of anti-corruption enforcement in the United States. The current model—with federal prosecution as the norm—is not cast in stone.


I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave 2020 Golden Gate University School of Law

I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave

Publications

Last week, while Supreme Court nominee Amy Coney Barrett was holding forth about how she applies originalism, invoking her mentor and former boss Justice Antonin Scalia, current Supreme Court justices were undermining an originalist opinion authored by Scalia. Nominee Barrett explained originalism: “I understand [the Constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Oral arguments in Torres v. Madrid make clear that, for some justices, originalism is appropriate ...


Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. MacDonnell 2020 The Catholic University of America, Columbus School of Law

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Catholic University Law Review

The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.

The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses ...


Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin 2020 William & Mary Law School

Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin

Popular Media

No abstract provided.


Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin 2020 William & Mary Law School

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.


Up To Interpretation—Highlighting The Texas Supreme Court’S “Ambiguous” Approach To Statutory Construction, Kyle Gromann 2020 Southern Methodist University, Dedman School of Law

Up To Interpretation—Highlighting The Texas Supreme Court’S “Ambiguous” Approach To Statutory Construction, Kyle Gromann

SMU Law Review

No abstract provided.


The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp 2020 University of Pennsylvania Carey Law School

The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

As in so many areas of law and politics in the United States, antitrust’s center is at bay. It is besieged by a right wing that wants to limit antitrust even more than it has been limited over the last quarter century. On the left, it faces revisionists who propose significantly greater enforcement.

One thing the two extremes share, however, is denigration of the role of economics in antitrust analysis. On the right, the Supreme Court’s two most recent antitrust decisions at this writing reveal that economic analysis no longer occupies the central role that it once had ...


Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine 2020 Touro Law Center

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken ...


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