Rbg And Gender Discrimination, 2021 Touro Law Center
Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, 2021 Touro Law Center
Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron
Scholarly Works
No abstract provided.
The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, 2021 Emory University School of Law
The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt
Faculty Articles
With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse …
Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, 2021 Emory University School of Law
Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag
Faculty Articles
In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …
(Im)Mutable Race?, 2021 Emory University School of Law
(Im)Mutable Race?, Deepa Das Acevedo
Faculty Articles
Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether …
The Long Shortlist: Women Considered For The Supreme Court, 2021 Angelo State University
The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin
Journal of Race, Gender, and Ethnicity
No abstract provided.
Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, 2021 Elisabeth Haub School of Law at Pace University
Comparative Judicialism, Popular Sovereignty, And The Rule Of Law: The Us And Uk Supreme Courts, Lissa Griffin, Thomas Kidney
Elisabeth Haub School of Law Faculty Publications
What does the future hold for the US and UK Supreme Courts? Both courts face an uncertain future in which their roles in their constitutional systems will come under intense scrutiny and pressure. The tension between the rule of law, often seen as the preserve of the judicial branches of government, and the sovereignty of the elected branches is palpable. In a time of the “strong man,” allegedly “populist leaders” who seemingly are pushing the limits of the rule of law, the breakdown of collaboration and debate, and the ever-present influence of social media, this tension will only become more …
Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, 2021 St. John's University School of Law
Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee
Faculty Publications
Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …
Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, 2021 University of Michigan Law School
Seamen, Railroad Employees, And Uber Drivers: Applying The Section 1 Exemption In The Federal Arbitration Ace To Rideshare Drivers, Conor Bradley
University of Michigan Journal of Law Reform
Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 …
Modeling Narrowest Grounds, 2021 University of Maryland Francis King Carey School of Law
Modeling Narrowest Grounds, Maxwell Stearns
Faculty Scholarship
The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”
The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not …
Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, 2021 Touro Law Center
Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas
Journal of Race, Gender, and Ethnicity
No abstract provided.
Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, 2021 University of Richmond - School of Law
Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle
Law Student Publications
Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …
Cancelling Justice? The Case Of James Clark Mcreynolds, 2021 Washington and Lee University School of Law
Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers
Scholarly Articles
Over the last several years, there has been a vigorous debate as to whether monuments and memorials of Confederate leaders and controversial historical figures should be purged from the public square. These conversations have included former Supreme Court justices and have led to the removal of multiple statues of former Chief Justice Roger Taney, author of the infamous “Dred Scott” decision. Drawing on the arguments mounted for and against the removal of statues, this article explores the decision of a small liberal arts college to strip the name of former Supreme Court Justice James Clark McReynolds from a campus building. …
Against Court Packing, Or A Plea To Formally Amend The Constitution, 2021 Washington and Lee University School of Law
Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley
Scholarly Articles
The original arguments against court packing carry less weight in the current social and constitutional era. Less weight, however, implies some validity to those concerns and within those arguments is an acknowledgement that court packing comes with some risk to governmental stability. Still, the original arguments against court packing cannot be categorized as strong in the current climate.
A better argument against court packing is simply that it is unlikely to be effective for any long-term informal constitutional change that is responsive to key social issues. Informal constitutional change is more clearly stable when it involves structural change rather than …
Civil Disobedience In The Face Of Texas’S Abortion Ban, 2021 Washington and Lee University School of Law
Civil Disobedience In The Face Of Texas’S Abortion Ban, Alexi Pfeffer-Gillett
Scholarly Articles
This Article uses Texas’s abortion ban to demonstrate why civil disobedience is the best strategy against such private-enforcement schemes. It proceeds in three parts. Part I demonstrates that Texas’s private enforcement scheme in fact directly implicates state court officials and potentially state police forces. It then explains why bringing about the involvement of state courts and police through civil disobedience will put SB8 on constitutionally weaker ground. Part II details potential arguments against civil disobedience as a means of challenging private enforcement schemes. This Part also explains why relying on the federal government to challenge such laws will be insufficient. …
Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), 2021 University of Maine School of Law
Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg
Faculty Publications
Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …
Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, 2021 Indiana University Maurer School of Law
Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug
Indiana Law Journal
This Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the …
The Constitutional Tort System, 2021 Maurer School of Law: Indiana University
The Constitutional Tort System, Noah Smith-Drelich
Indiana Law Journal
Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.
This Article constructs a framework of the constitutional tort system, …
An Appellate Solution To Nationwide Injunctions, 2021 Yale Law School
An Appellate Solution To Nationwide Injunctions, Sam Heavenrich
Indiana Law Journal
District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them …
No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, 2021 Touro Law Center
No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, Georgia D. Reid
Touro Law Review
No abstract provided.