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Full-Text Articles in Law

Lower Court Originalism, Ryan C. Williams Dec 2022

Lower Court Originalism, Ryan C. Williams

Boston College Law School Faculty Papers

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While ...


Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey Dec 2022

Let's Get Real: Weak Artificial Intelligence Has Free Speech Rights, James B. Garvey

Fordham Law Review

The right to free speech is a strongly protected constitutional right under the First Amendment to the U.S. Constitution. In 2010, the U.S. Supreme Court significantly expanded free speech protections for corporations in Citizens United v. FEC. This case prompted the question: could other nonhuman actors also be eligible for free speech protection under the First Amendment? This inquiry is no longer a mere intellectual exercise: sophisticated artificial intelligence (AI) may soon be capable of producing speech. As such, there are novel and complex questions surrounding the application of the First Amendment to AI. Some commentators argue that ...


The Presidential Succession Act At 75 | The 1947 Act And The Judiciary: Would The Courts Decide Who Is President?, Gregory F. Jacob Nov 2022

The Presidential Succession Act At 75 | The 1947 Act And The Judiciary: Would The Courts Decide Who Is President?, Gregory F. Jacob

Fordham Law Review Online

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and ...


The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby Nov 2022

The Dobbs Effect: Abortion Rights In The Rear-View Mirror And The Civil Rights Crisis That Lies Ahead, Terri Day, Danielle Weatherby

William & Mary Law Review Online

On June 24, 2022, seven weeks after the first-ever leak of a draft opinion, the United States Supreme Court circulated its decision in Dobbs v. Jackson Women’s Health Organization, defying stare decisis, overruling fifty years of precedent, and shattering the hopes of millions of Americans, who wished the leaked opinion was a fiction that would never come to be.

As the leaked draft forewarned, Roe v. Wadeis no longer the law of the land. No longer is a woman’s right to terminate a pregnancy—to exercise bodily autonomy and be free to control the trajectory of her life ...


Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai Oct 2022

Boba Fett, Bounty Hunters, And The Supreme Court’S Viking River Decision: A New Hope, Imre S. Szalai

Washington and Lee Law Review Online

The United States Supreme Court recently issued a fractured decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (June 15, 2022), a classic David v. Goliath clash between a worker and employer. Can arbitration agreements be used to eliminate group or representative actions brought against employers, where the plaintiff worker is serving as a bounty hunter for the State? Although the majority clearly holds that a worker’s individual claims must be sent to arbitration pursuant to a predispute arbitration agreement, the splintered opinions leave some uncertainty regarding what happens to the representative claims of the other ...


Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola Oct 2022

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.


The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker Oct 2022

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified ...


Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier Oct 2022

Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier

Villanova Environmental Law Journal

No abstract provided.


Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser Oct 2022

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.


Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle Oct 2022

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state ...


Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew Oct 2022

Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew

Indiana Law Journal

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the ...


Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson Oct 2022

Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson

Indiana Law Journal

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme ...


Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson Oct 2022

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies ...


Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller Oct 2022

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business ...


Religious Liberty Interest Convergence, Asma T. Uddin Oct 2022

Religious Liberty Interest Convergence, Asma T. Uddin

William & Mary Law Review

Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.

Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and ...


Ford V. Where Are We?: The Revival Of The Sliding Scale To Govern The Supreme Court's New "Relating To" Personal Jurisdiction, Zois Manaris Oct 2022

Ford V. Where Are We?: The Revival Of The Sliding Scale To Govern The Supreme Court's New "Relating To" Personal Jurisdiction, Zois Manaris

William & Mary Law Review

This Note proposes a test to govern “relating to” specific jurisdiction, a variation on a theme to those familiar with the doctrine: a “sliding scale” approach to contacts and relatedness, accompanied by a separate assessment of reasonableness factors the Supreme Court has outlined in previous cases to serve as a check on the sliding scale. Part I of this Note explains the “sliding scale” approach, its unpleasant first interaction with the Court, and its revival by the Ford majority. Part II defines this Note’s proposed test and demonstrates its consistency with Supreme Court precedent. Finally, Part III applies this ...


The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West Oct 2022

The Disappearing Freedom Of The Press, Ronnell Andersen Jones, Sonja R. West

Washington and Lee Law Review

At this moment of unprecedented decline of local news and amplified attacks on the American press, scholars are increasingly turning their attention to the Constitution’s role in protecting journalism and the journalistic function. Recent calls by some U.S. Supreme Court Justices to reconsider the core press-protecting precedent from New York Times Co. v. Sullivan have intensified these conversations. This scholarly dialogue, however, appears to be taking place against a mistaken foundational assumption that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Yet despite the First Amendment text ...


Disparate Discrimination, Leah M. Litman Oct 2022

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks ...


Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin Oct 2022

Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin

Fordham Law Review

In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. But ...


Rethinking The Supreme Court’S Impact On American Federalism And Centralization, Michael Dichio, Ilya Somin Sep 2022

Rethinking The Supreme Court’S Impact On American Federalism And Centralization, Michael Dichio, Ilya Somin

Utah Law Faculty Scholarship

This article challenges the conventional wisdom about of the Supreme Court’s impact on federalism and centralization. In particular, we argue that the centralization impact of the Court is far less pronounced if decisions that uphold federal and state/local laws against challenge are classified as neutral rather than as centralizing and decentralizing, respectively. This reclassification dramatically alters our understanding of the Court’s role in establishing federal–state boundaries of power. After presenting our theoretical arguments, we briefly discuss the potential empirical effects of these revisions. Our analysis calls into question the traditional picture of the Court as a ...


Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger Sep 2022

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.


Judging Hard Cases, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

Judging Hard Cases, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


2022-2023 Supreme Court Preview: Digital Notebook (Cover Page), Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

2022-2023 Supreme Court Preview: Digital Notebook (Cover Page), Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


Granted Cases, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

Granted Cases, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


The Court And Limits On The Administrative State, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

The Court And Limits On The Administrative State, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


2022-2023 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

2022-2023 Supreme Court Preview: Schedule Of Events, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


2022-2023 Supreme Court Preview: Panelist Biographies, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

2022-2023 Supreme Court Preview: Panelist Biographies, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


The Court And Religion, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

The Court And Religion, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


The Roberts Court And Race, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

The Roberts Court And Race, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.


Abortion Litigation And Second Amendment Litigation After Dobbs And Bruen, Institute Of Bill Of Rights Law At The College Of William & Mary Law School Sep 2022

Abortion Litigation And Second Amendment Litigation After Dobbs And Bruen, Institute Of Bill Of Rights Law At The College Of William & Mary Law School

Supreme Court Preview

No abstract provided.