Law Commons^™

Fisher's Fishing Expedition, Vinay Harpalani

All Faculty Scholarship

This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of 'critical mass' and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions.

Tinkering Around The Edges: The Supreme Court's Death Penalty Jurisprudence, John Bessler

All Faculty Scholarship

This Essay examines America's death penalty forty years after Furman and provides a critique of the Supreme Court's existing Eighth Amendment case law. Part I briefly summarizes how the Court, to date, has approached death sentences, while Part II highlights the incongruous manner in which the Cruel and Unusual Punishments Clause has been read. For instance, Justice Antonin Scalia-one of the Court's most vocal proponents of "originalism" conceded that corporal punishments such as handbranding and public flogging are no longer constitutionally permissible; yet, he (and the Court itself) continues to allow death sentences to be imposed. The American Bar Association …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …

July 1, 2012: The Significance Of The Obamacare Decision, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Significance of the Obamacare Decision“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 8, 2012: How Do The Draft Cases Aid In Resolution Of The Culture Wars?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How Do the Draft Cases Aid in Resolution of the Culture Wars?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 2, 2012: Massachusetts V. United States Department Of Health And Human Services, Bruce Ledewitz

Hallowed Secularism

Blog post, “ MASSACHUSETTS v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 30, 2012: Seeger—An Extraordinary Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “Seeger—an Extraordinary Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Implications Of Snyder V. Phelps, Meghan White

Honors College

Snyder v. Phelps, a recent U.S. Supreme Court Case, appears to have had a vast but infrequently discussed impact on First Amendment law. In particular, the case changed the way Intentional Infliction of Emotional Distress claims are decided. Snyder v. Phelps shifted the manner in which speech is analyzed away from the method of analysis present in Hustler Magazine, Inc. v. Falwell. Rather than focusing mainly on what the status is of the target of speech, Snyder requires one first, and possibly only, look to the dominant thrust of the speech. If the dominant thrust of speech is on a …

April 4, 2012: Samuel Moyn’S Questions About Church, State, And The Crisis In American Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Samuel Moyn’s Questions about Church, State, and the Crisis in American Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

March 30, 2012: A Fundamental Rights Case Masquerading As A Commerce Clause Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Fundamental Rights Case Masquerading as a Commerce Clause Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 10, 2012: The Ministerial Exception Must Be Put On New Foundations, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Ministerial Exception Must be Put on New Foundations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Faculty Scholarship

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To Section 5000a Of The Tax Code, Kevin C. Walsh

Law Faculty Publications

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

There is a puzzle surrounding the Supreme Court's consideration of these cases. Everyone seems to want an answer to the question …

Religious Neutrality In The Early Republic, Jud Campbell

Law Faculty Publications

Governmental neutrality is the heart of the modern Free Exercise Clause. Mindful of this core principle, which prevents the government from treating individuals differently because of their religious convictions, the Supreme Court held in Employment Division v. Smith that a neutral law can be constitutionally applied despite any incidental burdens it might impose on an individual’s exercise of religion. Conscientious objectors such as Quakers, for instance, do not have a constitutional right to be exempt from a military draft. Thus, neutrality now forms both the core and the outer limit of constitutionally guaranteed religious freedom. Judged according to founding-era views, …

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

To Tax, To Spend, To Regulate, Gillian E. Metzger

Faculty Scholarship

Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA's Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called "individual mandate") as the conscription of the healthy to subsidize the sick. This conflict over the federal government's proper role is, of course, not new; it has played out repeatedly …

On Avoiding Avoidance, Agenda Control, And Related Matters, Henry Paul Monaghan

Faculty Scholarship

Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court's affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, …

Fisher V. Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

Whatever, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …

Upside-Down Judicial Review, Corinna Barrett Lain

Law Faculty Publications

The countermajoritarian difficulty assumes that the democratically elected branches are majoritarian and the unelected Supreme Court is not. But sometimes the opposite is true. Sometimes it is the elected branches that are out of sync with majority will and the Supreme Court that bridges the gap, turning the conventional understanding of the Court's role on its head. Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. What emerges is a distinctly majoritarian, upside-down understanding of judicial review. This Article illustrates, explains, and …

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

Scholarly Works

No abstract provided.