Law Commons^™

Asylum Ban Litigation: Supreme Court Declines To Stay Injunction, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Prophylactic Merger Policy, Herbert J. Hovenkamp

All Faculty Scholarship

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

The Scope Of Ipr Estoppel: A Statutory, Historical, And Normative Analysis, Christa J. Laser

Law Faculty Articles and Essays

When Congress implemented inter partes review (IPR) and other patent post-grant proceedings through the passage of the America Invents Act (AIA) in 2011, it provided that petitioners would be estopped in later proceedings from raising grounds for invalidity that they "raised or reasonably could have raised during that inter partes review." 35 U.S.C. § 315( e )(2). However, substantial uncertainty in courts' interpretation of this provision causes an enormous impact on an accused patent infringer's decision of whether and on what grounds to petition for review. One reading of the statutory estoppel provision suggests that "during that inter partes review" …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

At Oral Argument, Supreme Court Weighs Immigrant Detention, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Substantial Shifts In Supreme Court Health Law Jurisprudence, Lawrence O. Gostin, James G. Hodge

Georgetown Law Faculty Publications and Other Works

President Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer …

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

Interruptions At Supreme Court Confirmation Hearings Have Been Rising Since The 1980s, Paul M. Collins Jr., Lori A. Ringhand

Popular Media

As scholars of the confirmation process, we aim to measure what is measurable, in the hope that data can inform our more subjective perceptions of politics. And one measurable feature of Kavanaugh’s testimony is the striking number of times he interrupted the senators to challenge their comments or force his own point. Here, the historical record can shed some light. This article reviews the history of interruptions during Supreme Court confirmation hearings from 1939 to 2010.

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

Articles

President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring …

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

2018-2019 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2018-2019 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: Trump And The Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: Property Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 6: Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw

Online Publications

The allegation made by Christine Blasey Ford — that at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has not only upended Judge Kavanaugh’s Supreme Court confirmation hearings, but has also left Americans wondering what standards should apply to an accusation like this.

Testimony Of Rebecca Ingber Before The United States Senate Committee On The Judiciary On The Nomination Of Brett Kavanaugh For Associate Justice Of The U.S. Supreme Court, Rebecca Ingber

Faculty Scholarship

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh's national security and international law jurisprudence, in particular, the court's role in considering international law constraints on the President's war powers, and the potential effects of this judicial approach on executive power.

Judge Kavanaugh, Chevron Deference, And The Supreme Court, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Popular Media

How might a new U.S. Supreme Court Justice Brett Kavanaugh review federal agency statutory interpretations that come before him on the Court?

To find at least a preliminary answer, we can look to his judicial behavior while serving on the U.S. Court of Appeals for the D.C. Circuit—and there is plenty of relevant Kavanaugh judicial behavior to observe. Since starting his service on the D.C. Circuit in 2006, Judge Kavanaugh has participated in the disposition of around 2,700 cases and has authored more than 300 opinions. Over a third of those authored opinions involved administrative law.

Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong

Duke Journal of Constitutional Law & Public Policy Sidebar

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this …