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Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

When Do Justices Vote Against Their Ideology?, Ember Bowman

Honors Theses

This paper examines the inherently political nature of the U.S. Supreme Court, focusing on the appointment process, judicial behavior, and the influence of public opinion and how those cause justices to vote against their ideologies. The Supreme Court was created to be an independent judiciary, however, today that proves to be untrue. It analyzes constitutional provisions and the historical development of the Court’s powers, drawing on Federalist No. 78 to emphasize the importance of judicial independence. This study highlights the role of the President and Senate in appointing justices, exploring how political and demographic criteria affect nominations. Additionally, it addresses …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force the …

Book Review: John Paul Stevens, The Making Of A Justice: Reflections On My First 94 Years, New York, Little, Brown And Co., 2019, Pp. 549, $35.00 (Hardback), Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

Speaking Collectively: The First Amendment, The Public Sector, And The Right To Bargain And Strike, Kate Andrias

Faculty Scholarship

How is it that the Supreme Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union …

Revitalizing Biotechnological Advancement In The United States: Patent Eligibility Reform To Promote Innovation While Preserving Morality, Sydney Virtue

West Virginia Law Review

Patent protection has long been recognized as a key part of promoting innovation; however, current patent eligibility law in the United States often produces the exact opposite result. While the basic framework for patent eligibility is provided by the Patent Act, the United States Supreme Court has crafted several significant exceptions to patent eligibility—laws of nature, natural phenomena, and abstract ideas. These judicial exceptions have created a crisis in patent law and impeded biotechnological innovation, as they are too vague to be properly confined and carry tests that are too ambiguous for predictable application. To promote and retain world leadership …

Taking Liberties: The Supreme Court's New Hierarchy Of Rights And Its Victims, Richard B. Katskee

West Virginia Law Review

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

The Surprising Survival – So Far – Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to …

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik

Faculty Scholarship

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

Social Media And Perceptions Of Supreme Court Legitimacy, Ryan Stadler

University Honors Theses

This thesis observed how information sources may have a polarizing effect on perceptions of Supreme Court legitimacy. The focus of the study was to measure whether social media had a stronger effect on peoples' perception of Supreme Court legitimacy when compared to other forms information sources. This study may significantly determine how support for the Supreme Court can fluctuate depending on both the platform of information distribution and the content of the information. This study used an anonymous survey to canvas sentiment about the Supreme Court in the Portland Metro Area. The initial findings suggest that those who use social …

Bridging Silos: Environmental And Reproductive Justice In The Climate Crisis, Sara A. Colangelo

Georgetown Law Faculty Publications and Other Works

The climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered …

Examining Patent Eligibility, Charles Duan

St. John's Law Review

(Excerpt)

A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

St. John's Law Review

(Excerpt)

Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that …

Examining Netchoice And Murthy: Content Moderation In The Hands Of The Supreme Court, Devin B. Forbush

Student Journal of Information Privacy Law

The right to free speech is often justified by the idea that an undisturbed marketplace of ideas is an essential ingredient for a healthy democracy. While in many cases we may believe the views espoused by that speech are incorrect, ignorant, or even harmful, those reasons do not justify silencing those views. In 2024, there is a clear social divide between social media platforms’ content-moderation practices. On one side, anti-moderation advocates opine that social media platforms have a distinct and pervasive bias in moderating user content and viewpoints indiscriminately. On the other side, many advocates contend that social media platforms …

Correcting A Corrupt Court: How Unethical Legislative And Judicial Decisions Have Led To The Disintegration Of Basic Human Rights, Civil Liberties, And Personal Freedoms In The Name Of Scoring Points For Political Parties—And How We Can Fix It Without Expansion, Jenelle Carlin

Seattle Journal for Social Justice

No abstract provided.

Excepting Nondelegation From Supreme Court Review, Michael Lomax

Georgia Law Review

For almost a century, the nondelegation doctrine has allowed Congress to create hundreds of distinct federal agencies—provided the delegation meets the “intelligible principle” requirement. While not exacting, this standard underlies the current administrative state, and absent a sufficiently defined alternative, the intelligible principle should remain undisturbed. A recent dissent and a separate pending case, however, give pause. Both present opportunities to rework the intelligible principle, but the solutions offered do not advance the ball. Rather, they suggest replacing a vague interpretive standard with a troublesome interpretive standard, which is unwarranted when a meaningfully clearer one is unfeasible. Further still, conceptualizing …

Moore News About The Independent State Legislature, Bruce Ledewitz

Law Faculty Publications

The big news about the Independent State Legislature Doctrine (Doctrine) is that, despite the expectations of most observers, including me, the Supreme Court did not fully adopt the Doctrine in Moore v. Harper. The majority opinion, written by Chief Justice Roberts, and joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, held that state courts may apply their state constitutions to state legislation affecting federal elections in the course of what the opinion called the “ordinary exercise of state judicial review.”

It is equally clear, however, that the Court in Moore federalized state constitutional decision-making in the context of federal …

Gateway And Non-Gateway Issues In The Enforcement Of Agreements To Arbitrate, George A. Bermann

Faculty Scholarship

Far greater attention is given in literature on international arbitration to limitations on the enforceability of arbitral awards than on the enforceability of agreements to arbitrate. This chapter seeks to redress the balance. While rulings on the enforceability of an award is incontrovertibly within the jurisdiction of the court asked to enforce the award, authority to determine the enforceability of an arbitration agreement is allocated between courts and arbitral tribunals themselves. The chapter seeks to determine which defenses to enforcement of arbitration agreements may be lodged before a court ("gateway issues") and which are necessarily reserved to the tribunal ("non-gateway …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

From College Campus To Corner Office: The Impact Of Sffa V. Harvard On Voluntary Affirmative Action Programs, Ellen Whitehair

University of Cincinnati Law Review

No abstract provided.

Saving Genus Claims For Antibody Patents: What We Can Learn From The Foreign Jurisdictions, Ningxi Sun

San Diego International Law Journal

In the United States, therapeutic antibodies play a key role in the innovations for life-saving therapies. Genus claims—broad claims that cover a group of related species – are widely used in antibody patents, allowing the patentee to obtain broad protection of their inventions. However, a recent line of Federal Circuit decisions has created a higher bar to obtaining patent protection for antibodies. Specifically, it is now nearly impossible to maintain an antibody genus claim. Noteworthy, the United States’ treatment for antibody claims is diverging from other major jurisdictions in the world.

This Article argues the Supreme Court and Congress should …

An Analysis Of A Changing Supreme Court Viewed Through Students For Fair Admissions V. President And Fellows Of Harvard College, Reed Fagg

Finance Undergraduate Honors Theses

An analysis of the Students for Fair Admissions v. President and Fellows of Harvard College and Students for Admissions v. the University of North Carolina Chapel Hill to better understand the changes in the Supreme Court. Breaking down of the argument and a study of societal impacts.

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Constitutional Rights And Remedial Consistency, Katherine Mims Crocker

Faculty Scholarship

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and …

Anti-Press Bias: A Response To Andersen Jones And West's Presuming Trustworthiness, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Professors RonNell Andersen Jones and Sonja R. West’s Presuming Trustworthiness is a deeply depressing read. That is what makes it so good. The article is a clear-eyed, data-driven approach to assessing just how endangered the legal status of the free press is. Given the universality of the agreement that a free press is central to democracy, Andersen Jones and West’s message is vital. Presuming Trustworthiness should raise alarms.

In response, I hope this essay can serve as a bullhorn. I want to amplify what Andersen Jones and West’s research and data bear out. Not only has the Supreme Court ceased …

Quit Using Acquittals: The Unconstitutionality And Immorality Of Acquitted-Conduct Sentencing, Brenna Nouray

Pepperdine Law Review

This Comment examines the phenomenon of acquitted-conduct sentencing—a practice that allows a sentencing judge to enhance a criminal defendant’s sentence due to conduct for which he has already been acquitted. Seventeen-year-old Dayonta McClinton is one of many criminal defendants who have unjustly suffered at the hands of this practice when he received a thirteen-year enhancement because of conduct for which he already received a verdict of not guilty from a jury. This Comment argues that acquitted-conduct sentencing is unconstitutional, as it violates both the reasonable doubt standard required under the Due Process Clause of the Fifth Amendment and the jury …

A Performative Model For Conducting Critical Race Analysis: Josephine Baker, Modern Dance, And Utilizing Narrative To Transform Legal Doctrine, Patrick C. Brayer

Seattle Journal for Social Justice

No abstract provided.

The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson

Pepperdine Law Review

The Supreme Court is one of our most precious institutions. However, for the last few years, American confidence in the Court has dropped to a new low. Less than 40% of Americans have confidence in the Court and its decisions. Recent revelations regarding luxury trips, gifts, and exclusive access for certain individuals to the Justices have raised questions about whether the Justices understand their basic ethical duties and can act in a fair and impartial manner. As commentators have noted, the Supreme Court stood as the only court in America that was not governed by an ethical code. The question …