Law Commons^™

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

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The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Equality Is A Brokered Idea, Robert Tsai

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This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

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In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

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No abstract provided.

Jesner V. Arab Bank, Rebecca Hamilton

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The exclusion of transnational human rights litigation from U.S. federal courts is, for most practical purposes, now complete. On April 24, 2018, the U.S. Supreme Court delivered a 5–4 ruling in Jesner v. Arab Bank, deciding that foreign corporations cannot be sued under the Alien Tort Statute (ATS).

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

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Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

The Olmstead Imperative: The Right To Live In The Community And Beyond, Robert Dinerstein

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Of the 20 Americans with Disabilities Act (ADA) cases that the United States Supreme Court has decided in the 25 years of the statute’s existence, Olmstead v. L.C. by Zimring is without doubt the most significant for people with intellectual and developmental disabilities. Olmstead is the only Supreme Court ADA case that specifically addresses the rights of people with intellectual and developmental disabilities, but its importance goes well beyond this specific fact. In this essay, I set out the holding of the Olmstead decision, its connection to, and extension of, prior case law, the extent of its subsequent enforcement, and …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

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As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent On The Meaning Of Federal Law?, Amanda Frost

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The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely …

Citizens Derided: Corporate Politics In The Roberts Court, Jamin B. Raskin

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No abstract provided.

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

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In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

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his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

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The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

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No abstract provided.

Defending The Majoritarian Court, Amanda Frost

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No abstract provided.

Misplaced Modifiers - Say What, David Spratt

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No abstract provided.

Taking Stock Of Student Rights Forty Years After Tinker, Stephen Wermiel

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No abstract provided.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

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In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Student Speech: The Enduring Greatness Of Tinker, Jamin B. Raskin

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The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to …

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

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No abstract provided.

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

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No abstract provided.

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

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The late Supreme Court Justice Thurgood Marshall, founder of the NAACP Legal Defense Fund ("LDF"), and head of the legal team that litigated Brown v. Board of Education,' knew well the challenges that desegregation posed in a nation founded on a system of racial subjugation and white supremacy. A full thirty years after Brown, he acknowledged: Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years.... In the short run, it may seem to be the easier course to allow …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

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From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Peer Dialogue: The Quagmire Of Scientific Expert Testimony: Crumping The Supreme Court's Style, Paul Rice

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No abstract provided.

Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i

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The continuing debate over the use of amicus curiae briefs at the World Trade Organization (“WTO”) raises interesting questions about the influence of the U.S. legal system on the WTO dispute settlement process. Specifically, it brings to the surface differences between legal cultures and the fact that the U.S. legal culture with its emphasis on procedure is not readily transferable to the WTO. Comparing the controversy regarding the use of amicus curiae briefs before WTO Panels and the Appellate Body with the history and evolution of the institution of amicus curiae before the U.S. Supreme Court may help explain the …

News Media Coverage Of The United States Supreme Court, Stephen Wermiel

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No abstract provided.

O'Connor: A Dual Role - An Introduction, Stephen Wermiel

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No abstract provided.

Appointment Controversies And The Supreme Court, Stephen Wermiel

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No abstract provided.