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Articles 1 - 30 of 233
Full-Text Articles in Law
The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson
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 …
Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein
Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein
Pepperdine Law Review
Just as the American public is politically polarized, so too is the U.S. Supreme Court. More than ever before, a clear alignment exists between the Justices’ partisanship and their ideological leanings (known as “partisan sorting”). Disapproval of opposing-party identifiers also appears to have intensified (“partisan antipathy”). This Article offers evidence of both forms of polarization. It shows that partisan sorting has resulted in wide gaps in voting between Republican and Democratic appointees; and it supplies data on “us-against-them” judging in the form of increasing antipathy toward opposite-partisan presidents. Taken collectively, the data point not to law “all the way down,” …
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Indiana Journal of Law and Social Equality
This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
Seattle University Law Review
After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Seattle University Law Review
Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …
Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez
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 …
Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron
Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron
Touro Law Review
No abstract provided.
Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff
Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff
Touro Law Review
The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson
Touro Law Review
This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.
Lost In The Thicket, Brad Snyder
Lost In The Thicket, Brad Snyder
Touro Law Review
As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.
The Curious Case Of Justice Neil Gorsuch, Justin Burnworth
The Curious Case Of Justice Neil Gorsuch, Justin Burnworth
Pace Law Review
Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …
Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re
Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re
Notre Dame Law Review Reflection
Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …
Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady
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 …
Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum
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 …
Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider
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 …
Justice Ginsburg's Journey To Dissents And Influence On Reproductive Rights, Songo Wawa
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 …
A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq
A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq
Journal of Race, Gender, and Ethnicity
This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …
Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq
Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq
Journal of Race, Gender, and Ethnicity
This Note will discuss some of the Commission’s findings and other interesting suggestions to determine whether it is possible to rein in the modern-day Court. Part I will explain the inherently political nature of the Supreme Court. Part II will briefly present how the Supreme Court acquired its power. Part III will discuss several prominent proposals for Supreme Court reform. Finally, Part IV will examine whether any recommendations may depoliticize the Court.
Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton
Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton
American University Journal of Gender, Social Policy & the Law
There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.
Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart
Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart
Indiana Law Journal
Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …
Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger
Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger
The Cardinal Edge
No abstract provided.
Aggregate Stare Decisis, Kiel Brennan-Marquez
Aggregate Stare Decisis, Kiel Brennan-Marquez
Indiana Law Journal
The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves
Dickinson Law Review (2017-Present)
No abstract provided.
Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg
Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg
St. Mary's Law Journal
Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber
Touro Law Review
We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …
This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell
This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell
Touro Law Review
This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger
Touro Law Review
Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.
“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray
“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray
Touro Law Review
There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
St. Mary's Law Journal
Abstract forthcoming.
City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas
City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas
Northwestern Journal of Law & Social Policy
The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars have criticized the Burger …