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121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig

Georgia Law Review

No abstract provided.

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

Scholarly Works

Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Divide, "Two-Step," And Conquer: How Johnson & Johnson Spurred The Bankruptcy System, Patrick Maney

University of Cincinnati Law Review

No abstract provided.

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Northwestern University Law Review

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Opening Remarks, Shoba Sivaprasad Wadhia

St. John's Law Review

(Excerpt)

Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe.

This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning …

Introduction, Rosemary Salomone

St. John's Law Review

(Excerpt)

This issue of the St. John’s Law Review includes several Articles that were initially presented at the Law Review’s Fall 2022 virtual symposium. The symposium commemorated the 40th anniversary of the Supreme Court’s landmark decision in Plyler v. Doe as a starting point for discussing current immigration law in the United States. It was dedicated in memory of Professor Michael A. Olivas, who held the William B. Bates Distinguished Chair in Law (Emeritus) and was the Director of the Institute for Higher Education Law and Governance at the University of Houston Law Center. Professor Olivas, a passionate advocate of …

Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider

Marquette Law Review

Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one …

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

Mother Nature On The Run: The Sec, Climate Change Disclosure, And The Major Questions Doctrine, J. Robert Brown, Jr.

San Diego Law Review

The Securities and Exchange Commission (SEC or Commission) has proposed a rule that addresses the disclosure needs of investors with respect to climate change. The proposal would require that public companies tell investors about the risks to their business associated with climate change and explain the system and strategy of governance for monitoring those risks. In addition, the proposal would mandate the disclosure of certain greenhouse gas emissions.

The SEC’s proposal arrived contemporaneously with the Supreme Court’s announcement of the “major questions” doctrine. A deliberate attempt to limit the authority of the executive branch, the doctrine would restrict agencies from …

Exploring Democratic Accountability In The Administrative State, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This essay seeks to add to the ongoing effort of defining accountability in practical terms by presenting an inconspicuous but directly on-point case study about administrative accountability. This is the story of the United States Department of Agriculture farmer committee system, which seems to be the one and only experiment in federal administrative elections. The experiment, however, has been a failure both as a matter of practical policy and constitutional validity. Indeed, in advance of legislative debate on the 2023 Farm Bill, a USDA advisory committee publicly recommended that Congress abolish the committee system. Nevertheless, there is much to learn …

A Handmaid’S Tale: Amy Coney Barrett, Originalism, And The Specter Of Religion, Calvin R. Coker, Joel L. Reed

Faculty and Staff Scholarship

In this essay, we analyze the Supreme Court confirmation hearings of Amy Coney Barrett to identify and explain the interaction between religion and jurisprudential philosophy. By tracing rhetorical scholarship on religion, politics, and the Supreme Court, we highlight tension engendered by both the members of the Senate Judiciary Committee and Barrett herself in locating her Catholicism as a desirable attribute for a nominee while at the same time espousing the importance of judicial objectivity. We suggest Barrett and her supporters on the committee invoked the judicial philosophy of originalism to allay this tension while occluding conversations about Barrett’s prior ideological …

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Jane Crow Constitutionalism, Evan D. Bernick

Northern Illinois University Law Review

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

The Equal Rights Amendment And The Equality Act: Closing Gaps Post-Bostock For Sexual Orientation And Gender Identity Minorities, Sarah Blazucki

University of the District of Columbia Law Review

In 2020, the Supreme Court held in Bostock v. Clayton County that the “because of sex” protection in Title VII of the Civil Rights Act of 1964 (Title VII) included an individual’s “homosexual and transgender status.”1 This landmark decision expanded employment protections under the law, for the first time providing broad federal protections to sexual orientation and gender identity minorities.2 It was a sweeping decision, granting protections to millions of people.3 Yet many worry the protections are incomplete, for several reasons. First, the Court explicitly used the language “homosexual and transgender,”4 potentially leaving unresolved if other minority sexual orientations and …

There Is No Bruen Step Zero: The Law-Abiding Citizen And The Second Amendment, Jeff Campbell

University of the District of Columbia Law Review

In District of Columbia v. Heller, 1 the Supreme Court transformed Second Amendment law by adopting an originalist approach in gun-rights cases. Breaking from its previous cases, the Court recognized an individual right to bear arms, at least within the home.2 The Court’s method, while not fully specified, focused on history to determine the meaning of the Second Amendment. 3 But despite the abrupt change in the law, the anticipated revolution never really came. Lower courts turned away nearly every challenge to existing gun laws, sometimes by declining to extend Heller outside the home,4 sometimes by finding that the laws …

Justice Ginsburg's Journey To Dissents And Influence On Reproductive Rights, Songo Wawa

University of the District of Columbia Law Review

Justice Ruth Bader Ginsburg’s advocacy for gender equity, evidenced by her nationally famous dissents, began long before her 27 years on the Supreme Court. Prior to becoming a Supreme Court Justice, Attorney Ginsburg’s early experiences of gender inequity led to her advocacy for women’s rights as a law professor and as co-founder of the American Civil Liberties Union’s Women’s Rights Project. 1 Attorney Ginsburg’s legal strategy encompassed her pragmatic approach to voicing her opinions about gender equality. 2 In Gonzales v. Carhart, both her dissent announcement and written dissent demonstrated Justice Ginsburg’s commitment to women’s reproductive autonomy.3 Without Justice Ginsburg’s …

The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman

ConLawNOW

This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …

A Big Supreme Court Win For Farm Animals, Lewis Bollard

General – Farm Animal Issues

The article reports on the May 2023 U.S. Supreme Court decision upholding California’s Proposition 12, a landmark farm animal welfare law, with implications for state and national animal protection efforts.

Examining The Effects Of Student Loan Forgiveness And The Christian Perspective, Sarah Rogers

Helm's School of Government Conference - 2021-2024

On August 24, 2022, President Joe Biden announced his plan for federal student loan forgiveness. The program allows individuals who make less than $125,000 a year and families under $250,000 relieve up to $10,000 of their loan debt. Those who fall under the Pell Grant program are able to relieve up to $20,000 of their debt. The reactions to this “revolutionary” program were mixed. Typically, those who the program would directly affect were very enthusiastic about this idea while those, most notably Republicans, were less than thrilled. While the idea is good in theory, the execution of debt forgiveness will …

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Comment: The Unjust Side Of Civil Asset Forfeiture In Illinois: Innocent Victims And Corrupted Incentives, Sarah Farwick

Northern Illinois University Law Review

Under the broad scope of modern civil asset forfeiture, law enforcement agencies routinely deprive citizens of their property without ever formally charging them with a crime. This system diminishes the ideal values of American justice, yet the Supreme Court has long held that civil asset forfeiture is constitutional, leaving prospects of judicial reform unlikely. Therefore, it is crucial that individual states take action to protect their citizens by abolishing the use of civil asset forfeiture. In 2017, the Illinois General Assembly attempted to reform its civil asset forfeiture system, but upon close analysis and application of the statute, it is …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …