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Overturning Race-Conscious Admissions: Analyzing The History Of Higher Education Affirmative Acton Legal Discourse And Preserving Whiteness, Hiba A. Qari

Graduate Theses, Dissertations, and Problem Reports (ETD)

Although researchers have investigated Affirmative Action, few have attempted to understand and explain the language mechanisms shaping public opinion and policy. The purpose of this study was to explore the historical context of higher education Affirmative Action legal discourse. This study employed Critical Discourse Analysis and Critical Race Theory to analyze how language and race, as social constructs, maintain White dominance in law and higher education. The thematic concepts included power, White normativity, and diversity rhetoric. This project explored the historical evolution of the U.S. Supreme Court’s decisions on Affirmative Action policy in higher education. The study also investigated the …

The Supreme Court And The Challenges For Fiscal Federalism: Mineral Area Development Authority V Steel Authority Of India, Sanyukta Chowdhury, Amit Chowdhury

National Law School Journal

This case comment analyses the 2024 Supreme Court judgement in Mineral Area Development Authority v Steel Authority of India, in which the court upheld the states’ power to tax mineral rights and mineral-bearing land. The authors discuss the issues involved, the approach of the bench towards interpretation, and the implications for the parties to the case and other stakeholders. They argue that while fiscal federalism is crucial to India’s constitutional scheme, the bench had limited leeway in deciding the case on this basis due to the absence of legal, doctrinal, and factual clarity.

Originalism’S Age Of Ironies, Sherif Girgis

Journal Articles

From the Article

Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for …

Legitimacy And The Major Questions Doctrine, Ronald M. Levin

Scholarship@WashULaw

Questions about the legitimacy of recent Supreme Court decisions are occupying an increasingly prominent place in public law discourse. Last February, a widely discussed feature in the New York Times quoted several well-known law professors' laments that multiple decision by the newly empowered conservative majority of the Court have departed so far from accepted constitutional premises that the professor could not figure out how to teach them to their students

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With due respect to the Chief Justice, I will explain here why the MQD is itself among the few legal developments that I would describe as giving rise to …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

Washu Expert: Can Trump Bypass Senate Approval Of Controversial Cabinet Nominees?, Andrea Scoseria Katz, Neil Schoenherr

Scholarship@WashULaw

Andrea Katz, an associate professor of law at Washington University in St. Louis, is an expert on constitutional law, with a focus on presidential power. Here, she discusses how Cabinet members are traditionally appointed and whether the Senate or the Supreme Court could stop Trump from doing an end-around on tradition.

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarship@WashULaw

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …

The Rhetoric Of Abortion In Amicus Briefs, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage …

Judicial Fidelity, Caprice L. Roberts

Journal Articles

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.

Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding …

Lethal Immigration Enforcement, Abel Rodríguez

Faculty Publications

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …

Felix Frankfurter, Collector Of People, John Q. Barrett

Faculty Publications

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …

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

Faculty Publications

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 …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

Moore V. United States: The Constitutionality Of The Taxation Of Unrealized Gains, Loren Naldoza

Lewis & Clark Law Review

Rarely in modern tax jurisprudence does the common adage “nothing is certain except death and taxes” receive a challenge in the highest court in the land. This year, the Supreme Court is considering the most existential question concerning the federal income tax in over a century: what is “income”? The definition of “income” has gone through several developments and adjustments since the enactment of the Sixteenth Amendment. Two taxpayers have reached the Supreme Court to challenge one such aspect of the definition of “income”— whether realization is a constitutional requirement as required by the Sixteenth Amendment. When an accession to …

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke P. Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

Colonizing Queerness, Jeremiah A. Ho

All Faculty Scholarship

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

The Consequences Of Mythology: Supreme Court Decisionmaking In Indian Country, M. Alexander Pearl

Faculty Articles

Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation's official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to matter in new forms and spaces. How much these stories matter within contemporary contexts depends upon where they are spoken and more importantly, who is listening. On the pages of a U.S. Supreme Court opinion, what stories are told …

Blunt Speech Rights, Nicholas Almendares

Articles by Maurer Faculty

There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a …

Afrofuturism And The Law: A Manifesto, I. Bennett Capers

Faculty Scholarship

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Scholarly Works

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black

Touro Law Review

There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …

Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo

Touro Law Review

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Securities Arbitration Case Law Updates 2023-2024 (June 2024), Elissa Germaine, Nikki Junda

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner.

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

The Evolution Of Race-Based Admissions In American Higher Education, Chenglin Liu

Faculty Articles

This Article examines the Supreme Court’s evolving position on race-based admissions policies over the past 127 years. Between Plessy and Brown, universities used race-based policies to exclude black applicants from white universities. Brown shifted admissions policies from blocking black students to accepting them. As affirmative action gained momentum, universities escalated from merely accepting minority candidates to proactive recruitment by using quotas and lowering their admissions standards. The Court in Bakke set the ground rules for race-based admissions during that period. In 2003, Grutter upheld the university’s pursuit for a “critical mass” of minority students in its entering class. Two …