Law Commons^™

The Supreme Court’S 2014-2015 Term: The Year The Administrative State Trembled, Joel Alicea

Scholarly Articles

The opinions of the Supreme Court’s most recent term indicate that the court’s conservative justices are rethinking the scope and power of the administrative state.

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Scholarly Articles

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

Constitutional Contraction: Religion And The Roberts Court, Marc O. Degirolami

Scholarly Articles

This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its …

Originalism And The Rule Of The Dead, Joel Alicea

Scholarly Articles

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism — the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

Ordre Public And The First Amendment, Marshall J. Breger

Scholarly Articles

Ordre Public is a civil law concept according to which courts refuse to enforce the judgments of the courts of foreign countries because the judgments violate the enforcing state's core notions of public morals and public order. The concept is most often used in private international law. In some sense, it is a misnomer to talk about ordre public in American law as the terms is little used by American commentators or in American cases. Rather, the term that captures ordre public in the American context is "the public policy exception." While there may be subtle differences, for the most …

Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi

Scholarly Articles

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen.

Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode was …

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and …