Law Commons^™

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Law School News: Dean Bowman On The Scotus Admissions Decision 6-29-2023, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.

Divided Court Finds Generic Redactions Sufficient To Admit Confessions Of Non-Testifying Codefendants, Jeffrey Bellin

Popular Media

No abstract provided.

Four Maurer School Of Law Students Selected As 2023 Stevens Fellows, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Four Indiana Law students have been selected as Stevens Fellows, the John Paul Stevens Foundation accounced today (June 20). Selection as a Stevens Fellow allows students to receive critical financial support while participating in unpaid summer legal internships serving the public interest.

Named after the late U.S. Supreme Court Justice, the John Paul Stevens Foundation is dedicated to promoting public interest and social justice values in the next generation of American lawyers.

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

All Faculty Scholarship

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

The Problem Is The Court, Not The Constitution, Jonathan Feingold

Faculty Scholarship

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

The Aftermath Of Dobbs: How The Criminalization Of Abortion Has Obstructed The Exercise Of Bodily Autonomy, Sonia Bakshi

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

This Blog addresses the topic of bodily autonomy in relation to the criminalization of abortion because everyone should be entitled to the right to make their own choices, especially when it comes to their bodies, and even greater, their selves as a whole. With the recent overturning of Roe v. Wade, the ability to exercise bodily autonomy has never been more obstructed. The Supreme Court has left the nation with the impression that they do not believe women are capable of making decisions about their own bodies or their own futures. Now, it’s important to look into what the ripple …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

Faculty Publications

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

Justices Search For A Clear Rule For Confessions In Joint Trials, Jeffrey Bellin

Popular Media

No abstract provided.

The Evidentiary Challenges Of Confessions In Co-Defendant Trials, Jeffrey Bellin

Popular Media

No abstract provided.

Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll

All Faculty Scholarship

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.

This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Faculty Scholarship

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …

2023 Ruth Bader Ginsburg Essay/Art Contest, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Justices Citing Justices, Jay D. Wexler

Faculty Scholarship

Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Three-Judge District Courts, Direct Appeals, And Reforming The Supreme Court’S Shadow Docket, Michael E. Solimine

Faculty Articles and Other Publications

The “shadow docket” is the term recently given to a long-standing practice of the United States Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently the practice has received unusual attention inside and outside the legal community, because of its seemingly greater use by the Court in high-profile cases, with the emergency orders sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

Scholarly Works

Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

The Shape Of Citizenship: Extraordinary Common Meaning And Constitutional Legitimacy, David N. Mcneill, Emily Tucker

CPT Papers & Reports

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Rooted: Metaphors And Judicial Philosophy In Artis V. District Of Columbia, Richard L. Heppner Jr.

Law Faculty Publications

This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018).

Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, …

What Is The Territorial Scope Of The Lanham Act?, Marketa Trimble

Scholarly Works

Since Steele v. Bulova Watch Co., 344 U.S. 280 (1952), the Supreme Court has not addressed the territorial scope of the Lanham Act. Abitron Austria GmbH v. Hetronic International, Inc. is an opportunity for the Court to clarify how its RJR Nabisco extraterritoriality framework applies to the Lanham Act, whether and how current circuit court tests fit into the framework, and whether any of the tests should apply in the second step of the framework.

The October 2021 Term And The Challenge To Progressive Constitutional Theory, J. Joel Alicea

Scholarly Articles

This Essay examines the ways in which the Supreme Court's October 2021 Term challenges core theoretical commitments of progressive constitutional theory. Progressive constitutional theory originated in the progressive political theory of the late nineteenth and early twentieth centuries. Accordingly, progressive constitutional theory shares progressive political theory's commitments to two propositions: rationalism and individualism. These commitments lead to an understanding of history as moving in a particular direction--one that is generally in line with progressive ideology. The originalist and traditionalist approaches of the Court's October 2021 decisions call into question the progressive confidence in the direction of history while simultaneously rejecting …

“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, And The Fourth Amendment, Matthew L. Brock

Law Student Publications

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array …

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Cftc & Sec: The Wild West Of Cryptocurrency Regulation, Taylor Anne Moffett

Law Student Publications

Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit …

Roe And The Original Meaning Of The Thirteenth Amendment, Kurt T. Lash

Law Faculty Publications

The current debate over Roe v. Wade as a substantive due process right has prompted scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery” and “involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument con-cede that the right to abortion was not the expected application of the Thirteenth Amendment but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.