Law Commons^™

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

Analyzing The Roles Of Law And Politics In Judicial Decision Making: Predicting U.S. Supreme Court Justices’ Votes On A Case Of Affirmative Action, Ashley Renkor

The Eastern Illinois University Political Science Review

This study seeks to study relevant precedent cases concerning affirmative action, the 14th Amendment equal protection clause, the 5th Amendment equal protection clause, and the Civil Rights Act of 1964, with the goal of predicting how certain justices will vote in the affirmative action case, Fisher vs. the University of Texas at Austin. I conclude that justices will debate numerous aspects at play, such as original intent, plain meaning, precedent, policy preferences, public opinion, personal experience, the federal government, and interest groups in order to take positions in the Fisher case for the second time around with an intent …

Do Women Justices Matter?, Ashley Shula

The Eastern Illinois University Political Science Review

In recent years, women have started to have a considerable impact on the political process. While literature exists on women in Congress and in district court settings, little research exists on the role played by female Supreme Court Justices. The author attempts to shed light on the impact of female justices by assessing statements made by the justices, in addition to their voting records. The author finds that the new women Supreme Court Justices have had little impact so far, but offers that perhaps as time goes on, this will change.

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

Bringing Compassion Into The Province Of Judging: Justice Blackmun And The Outsiders, Pamela S. Karlan

Dickinson Law Review (2017-Present)

No abstract provided.

Justice Blackmun And Preclusion In The State-Federal Context, Karen Nelson Moore

Dickinson Law Review (2017-Present)

No abstract provided.

Justice Blackmun And Individual Rights, Diane P. Wood

Dickinson Law Review (2017-Present)

Of the many contributions Justice Blackmun has made to American jurisprudence, surely his record in the area of individual rights stands out for its importance. Throughout his career on the Supreme Court, he has displayed concern for a wide variety of individual and civil rights. He has rendered decisions on matters ranging from the most personal interests in autonomy and freedom from interference from government in life’s private realms, to the increasingly complex problems posed by discrimination based upon race, sex, national origin, alienage, illegitimacy, sexual orientation, and other characteristics. As his views have become well known to the public, …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Stein V. United States Of America (U.S. September 15, 2017) (No. 17-250)., Janet Moore

Faculty Articles and Other Publications

Petitioner’s case asks a basic but fundamental question: Will our criminal justice system permit convictions obtained through the knowing use of false testimony, simply because the prosecutor has not also suppressed evidence indicating the testimony was false? The Eleventh Circuit answered this question in the affirmative, but for decades this Court has known a very different justice system, one in which the knowing, uncorrected use of false testimony by the prosecutor could never be countenanced. And for good reason. As this Court has long recognized, the knowing use of false testimony is “as inconsistent with the rudimentary demands of justice …

Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich

Arbitration Law Review

No abstract provided.

Supreme Court Term In Review: Ot 2016, Donald Roth

Faculty Work Comprehensive List

"Even though the Court is expected to be apolitical, there are many who assume that the judges are beholden to party politics."

Posting about recent major cases before the U.S. Supreme Court from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.

http://inallthings.org/supreme-court-term-in-review-ot-2016/

Lost At Sea: The Continuing Decline Of The Supreme Court In Admiralty, Michael Sevel

University of Miami Law Review

For the first 200 years of its history, the United States Supreme Court served as the primary leader in the development of, and its cases the primary source of, the admiralty and maritime law of the United States. That appears to be changing. The Court’s admiralty cases over the last quarter century indicate that it is slowly giving up its traditional leading role in creating and developing rules of admiralty law, and instead deferring to Congress to make those rules, a trend that is tantamount to abandoning its Article III constitutional duty to serve as the country’s only national admiralty …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

Implementing The Refugee Eo: Add Grandparents, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …

The Rehnquist Revolution, Erwin Chemerinsky

Erwin Chemerinsky

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Supreme Court Institute Annual Report, 2016-2017, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2016 – corresponding to the 2016-2017 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.

A list of all SCI moot courts held in OT 2016 – arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of observers – follows the narrative portion …

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

All Faculty Scholarship

In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …

When Is It Necessary For Corporations To Be Essentially At Home?: An Exploration Of Exceptional Cases, Priscilla Heinz

University of Richmond Law Review

No abstract provided.

The Replacements: Conflicting Standards For Obtaining New Counsel Under The Sixth Amendment, Sharon Finegan

Cleveland State Law Review

In 2006, the Supreme Court handed down a decision in United States v. Gonzalez-Lopez emphasizing the importance of a defendant’s right to counsel of choice under the Sixth Amendment and holding a denial of this right constitutes structural error, requiring automatic reversal. Following that decision, several federal circuit courts and state appellate courts have questioned how to apply this right to circumstances where the right to choice of counsel and the right to appointed counsel overlap. When a defendant seeks to replace retained counsel for appointed counsel, should the standard governing his motion fall under the right to choice of …

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Punishment Without Purpose: The Retributive And Utilitarian Failures Of The Child Pornography Non-Production Sentencing Guidelines, Brittany Lowe

Cleveland State Law Review

Pursuant to the Sentencing Reform Act of 1984, Congress established the U.S. Sentencing Commission to formulate an empirical set of federal sentencing Guidelines. With the U.S. Sentencing Guidelines, Congress intended to further the basic purposes of criminal punishment—deterrence, incapacitation, just punishment, and rehabilitation. Nevertheless, the Guidelines were instantaneously met with disapproval. Asserting that the mandatory Guidelines violated the Constitution, scholars and judges argued that the Commission usurped Congress’s role by prescribing punishments that were essentially binding law. In 2005, the Supreme Court held that the Guidelines were discretionary in United States v. Booker.

While this decision resolved many of …

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land & Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.

Supreme Conundrum: A Look Into Neil Gorsuch, And Why This Particular Supreme Court Confirmation Is So Important To The Current Split Between Liberal And Conservative Justices, Alan E. Garfield

Alan E Garfield

No abstract provided.

Original Intent: Understanding The Supreme Court's Original Jurisdiction In Controversies Between States, Kristen A. Linsley

The Journal of Appellate Practice and Process

No abstract provided.

Quantifying The Contours Of Power: Chief Justice Roberts & Justice Kennedy In Criminal Justice Cases, Michael A. Mccall, Madhavi M. Mccall

Pace Law Review

This Article seeks to contribute to the debate with an empirical analysis of voting behavior in criminal justice cases decided during the first ten Terms of the Roberts Court era. The following section presents the study’s case selection and introduces the types of measures used to illuminate influence on the High Court (Part II). Court- and individual-level tendencies (Part III) identify potential spheres of influence occupied by Chief Justice Roberts and Justice Kennedy. These bases of judicial power are examined separately in Part IV (Chief Justice Roberts) and Part V (Justice Kennedy). Some possible implications of Justice Scalia’s death on …

Why Not Limit Neil Gorsuch — And All Supreme Court Justices — To 18-Year Terms?, Lori A. Ringhand, Paul M. Collins Jr.

Popular Media

Legal scholars and political scientists increasingly question whether life tenure remains a good idea for Supreme Court justices. While scholars disagree about the exact numbers, our Supreme Court justices are serving longer and longer terms; presidents have incentives to choose younger and younger nominees; and the justices themselves appear to delay retirement in the hope of having an ideologically compatible president select their replacements. Moreover, the confirmation process has become increasingly contentious, culminating last year in Senate Republicans refusing to even grant a hearing to President Barack Obama’s nominee, Merrick Garland.

As a result, many scholars propose a shift to …

Trending @ Rwu Law: Dean Yelnosky's Post: 24: Dean Style 3-6-2017, Michael Yelnosky

Law School Blogs

No abstract provided.

Brief Of The National Association Of Criminal Defense Lawyers, Et Al As Amici Curiae Supporting Petitioner, Mcwilliams V. Dunn (U.S. March 6, 2017) (No. 16-5294)., Janet Moore

Faculty Articles and Other Publications

We submit this brief to make three important points. First, Ake itself clearly and unambiguously held as a matter of due process that indigent capital defendants must be provided with independent expert assistance upon a reasonable showing of need. The Court was unanimous on this point and swept aside aging precedent that had held provision of neutral assistance was adequate.

Second, Ake was hardly a revolutionary decision. As the Court noted, many states already provided expert assistance. In the first six years after Ake, numerous states explicitly held independent expert assistance must be provided upon an adequate showing of need. …

Elonis V. United States: Why The Supreme Court Punted On Free Speech, David Barney

Pepperdine Law Review

In Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme Court had a chance to interpret the boundaries of a federal statute forbidding threats transmitted in interstate or foreign commerce and to consider the constitutional implications of regulating such threats. In its statutory analysis, the Court hesitated to declare how the law should be applied, and instead, only provided guidance as to how it should not be. It likewise refrained from any further analysis on constitutional grounds entirely. This contest winning student case note explores the opinion in depth and comments on its potential implications.

Brief Of The National Association For Public Defense, Et Al As Amici Curiae Supporting Petitioner, Christeson V. Roper (U.S. January 30, 2017) (No. 16-7730)., Janet Moore

Faculty Articles and Other Publications

This case involves federal courts doubling down on the effective denial of counsel to a severely mentally impaired capital habeas petitioner on the eve of his execution, thereby preventing the full and fair litigation of an issue that demands this Court’s attention: the role played by a petitioner’s mental impairment in determining whether equitable tolling applies to the statute of limitations for filing a habeas petition. This Court should grant the petition to address whether the denial of adequate funding in this case constituted a constructive denial of the right to counsel required by the capital representation statute, 18 U.S.C. …