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Articles 1 - 30 of 266
Full-Text Articles in Law
Narratives Of Reproductive Control In The American Eugenics Movement, Cassandra M. Provost
Narratives Of Reproductive Control In The American Eugenics Movement, Cassandra M. Provost
Honors Theses
In this paper, I will explore the eugenics movement as a pseudo-scientific political, social, and legal phenomenon which had a devastating historical impact on America’s most vulnerable women, as well as briefly discuss its residual effects on contemporary reproductive rights conversations, through the lens of literature. Using an interdisciplinary discourse and narrative analysis approach, I identify two distinct themes within the explored narratives: (1) the importance of a government’s attempt to override a person’s autonomy by destroying the person’s ability to reproduce, and (2) the impropriety of actions based on a negative attitude toward disabled or undesirable persons. In my …
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Pepperdine Law Review
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing …
The Foreshadow Docket, Bert I. Huang
The Foreshadow Docket, Bert I. Huang
Faculty Scholarship
Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?
Yet for a lower court ruling on a temporary stay or injunction, the task seems to call …
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner
Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner
Touro Law Review
This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …
Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk
Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk
Touro Law Review
This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to accommodate within the law diverse cultures and values; just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic …
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Faculty Scholarship
This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also …
Some Are More Equal Than Others: U.S. Supreme Court Clerkships, Tracey E. George, G. Mitu Gulati, Albert H. Yoon
Some Are More Equal Than Others: U.S. Supreme Court Clerkships, Tracey E. George, G. Mitu Gulati, Albert H. Yoon
Vanderbilt Law School Faculty Publications
The most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’ paths from college to the Court to careers. Research shows that Court clerkships favor educational pedigree and status over pure achievement. …
Consumer Welfare Of The Future: Harm To Innovation As An Antitrust Injury, Brenton Gutkowski
Consumer Welfare Of The Future: Harm To Innovation As An Antitrust Injury, Brenton Gutkowski
San Diego Law Review
This Comment will discuss pertinent background information regarding American antitrust jurisprudence. Second, this Comment will define Big Tech and discuss its rise to a dominant market position in the American economy. Third, this Comment will break down the District of Columbia District Court’s decision in United States v. Microsoft Corp. and will discuss how the courts’ reasoning can establish a new standard of harm to innovation under the consumer welfare standard. Fourth, this Comment will discuss two different situations in which the harm to innovation standard works to espouse antitrust goals. In summation, this Comment will address objections to …
The Value Of The Marketplace Of Ideas: Academic Freedom In The American Academy, Daniel J. Perrone
The Value Of The Marketplace Of Ideas: Academic Freedom In The American Academy, Daniel J. Perrone
Theses and Dissertations
This dissertation surveys several landmark U.S. Supreme Court cases of academic freedom in the 20th and 21st century to argue for the value of a tolerant and liberal interpretation of unrestricted academic freedom. Central to its argument is a defense of Oliver Wendell Holmes 1919 ruling in Abrams that society is best served where all expressions are tested in a “marketplace of ideas,” a term first used by John Stuart Mill in his 1859 essay, “On Liberty.” In an era of increasing casualization of academic labor (the adjunct labor force) and political paranoia about terror, I conclude that the continual …
A Theory Of Federalization Doctrine, Gerald S. Dickinson
A Theory Of Federalization Doctrine, Gerald S. Dickinson
Articles
The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …
Judicial Federalization Doctrine, Gerald S. Dickinson
Judicial Federalization Doctrine, Gerald S. Dickinson
Articles
This Article explores the concept of “judicial federalization doctrine.” The doctrine emanates from well-documented areas of federal constitutional law, including exactions, racially motivated peremptory challenges, the exclusionary rule, same-sex sodomy, marriage, and freedom of speech and press. The origin and development of these federal doctrines, however, is anything but federal. The U.S. Supreme Court has, on rare occasions, heavily consulted with or borrowed from state court doctrines to create a new federal jurisprudence. While the literature addressing the Court’s occasional vertical dependence on state court doctrine is sparse, there is a complete absence of scholarly attention studying the Court’s reluctance …
Taking Corrigibility Seriously, Dora Klein
Taking Corrigibility Seriously, Dora Klein
Faculty Articles
This article argues that the Supreme Court's creation of a category of "irreparably corrupt" juveniles is not only an epistemological mistake but also a tactical mistake which has undermined the Court's express desire that only in the "rarest" of cases will juveniles be sentenced to life in prison without the possibility of parole.
Gender And The Law: Revisiting The Legacy Of A Feminist Icon, Deborah L. Brake
Gender And The Law: Revisiting The Legacy Of A Feminist Icon, Deborah L. Brake
Book Chapters
Justice Ginsburg attained celebrity status in her later years as the voice of feminism from the bench, but her influence on law and gender was not always so venerated. For much of her career, feminist scholarly criticism of her gender jurisprudence was sharp. Critics called the approach “formal equality,” pointing out that it benefited those women most similarly situated to men. The criticism echoed that leveled against her strategy as a litigator representing male plaintiffs. In recent years, Justice Ginsburg’s legacy has been burnished by a fresh interpretation crediting it with a more robust vision of gender equality than previously …
Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady
Brief Of Amicus Curiae Francis Fukuyama In Support Of Respondents In No. 22-277 And Petitioners In No. 22-555, Margaret E. O'Grady
Law Faculty Scholarship
The brief, in support of NetChoice, argues that the Texas and Florida “must carry” statutes violate the First Amendment in part because interoperability is a less restrictive means of achieving the goal of allowing diverse voices in the “town square” of the Internet.
Why The U.S. Supreme Court Is More Politicized Than Its U.K. Counterpart, Mike Kowalski
Why The U.S. Supreme Court Is More Politicized Than Its U.K. Counterpart, Mike Kowalski
Notre Dame Journal of International & Comparative Law
President Joe Biden’s nomination of then-Judge Ketanji Brown Jackson to the United States Supreme Court (the “Court”) conjured up all too fresh memories of just how politicized the Court, and the candidate selection process, has become. Not long before now-Justice Jackson’s nomination, the recent nomination and confirmation of Justice Amy Coney Barrett to the Court received significant media attention, both within the United States (U.S.) and internationally. On the same day of her swearing-in ceremony, the BBC, a public news organization headquartered in the United Kingdom (U.K.), found it relevant to publish an article describing seemingly mundane features of Justice …
The Confines Of Federalism On Farmed Animal Welfare, Miranda Groh
The Confines Of Federalism On Farmed Animal Welfare, Miranda Groh
Animal Law Review
Although farmed animal advocates have achieved some protection for animals through state and local laws, Congress’s constitutional authority to preempt state law and regulate interstate commerce poses a significant threat to those achievements. Additionally, the practical constraints of the United States’ interconnected food system suggest that national, uniform standards are more desirable than a state-by-state, piecemeal approach to animal welfare. Despite the potential benefits of a state-by-state approach and some obstacles faced at the federal level, this Article argues that long-lasting legal protections for farmed animals should ultimately come from Congress, and that animal advocates should concentrate their efforts there. …
Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry
Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry
Washington Law Review
Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …
Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez
Updating Anderson-Burdick To Evaluate Partisan Election Manipulation, Andrew Vazquez
Fordham Law Voting Rights and Democracy Forum
This Article analyzes jurisprudence concerning the judicial review of election laws. It suggests that the United States Supreme Court’s approach should acknowledge the realities of political partisanship when reviewing challenged laws and regulations. Specifically, this Article proposes a judicial test to evaluate election laws for partisan biases using factors modeled on those employed by the Court in Gingles v. Thornburg. Simply put, the manipulation of election laws to pursue partisan advantages poses the greatest threat to our democracy. Accordingly, this Article concludes that protecting our democracy from election practices that benefit one party over another in the guise of …
Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe
Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe
Law Faculty Scholarship
[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].
Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …
Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi
Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi
ConLawNOW
This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses …
Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe
Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe
Law Faculty Scholarship
[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).
The use of partisan labels to describe the different approaches to judging employed by the court’s two …
The Disappearing Freedom Of The Press, Ronnell Andersen Jones
The Disappearing Freedom Of The Press, Ronnell Andersen Jones
Utah Law Faculty Scholarship
At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue 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. Despite the First Amendment …
Modern Authorities From Brandies To Brnovich: For Jurists Who Have Considered Social Science / When Doctrine Was Not Enough, Jeremiah Chin
Modern Authorities From Brandies To Brnovich: For Jurists Who Have Considered Social Science / When Doctrine Was Not Enough, Jeremiah Chin
Articles
While the Supreme Court is the final authority on the Constitution, its interpretations increasingly turn to outside, non-legal sources to authoritatively support its conclusions of law and fact. Particularly in cases involving racial discrimination, the Court relies on social science data presented by the trial record, amicus curiae, or its own research. However, the Court lacks explicit rules or methods of analysis for these data. To remedy this gap in analysis, this article proposes a critical methodology for analyzing the use of social science data in cases involving race. By outlining a historiography of the Court's invocation of extrinsic data, …
The Disappearing Freedom Of The Press, Sonja R. West, Ronnell Anderson Jones
The Disappearing Freedom Of The Press, Sonja R. West, Ronnell Anderson Jones
Scholarly Works
At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue 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. Despite the First Amendment …
Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen
Hernández V. Mesa: A Case For A More Meaningful Partnership With The Inter-American Commission On Human Rights, Peyton Jacobsen
Seattle University Law Review
Through an in-depth examination of Hernández, the Inter-American Human Rights System, and the success of Mexico’s partnership with said system, this Note will make a case for embracing human rights bodies— specifically, the Inter-American System on Human Rights—as an appropriate and necessary check on the structures that form the United States government. Part I will look closely at the reasoning and judicially created doctrine that guided the decision in Hernández, with the goal of providing a better understanding of the complicated path through the courts that led to a seemingly straightforward yet unsatisfying result. Part II will illustrate the scope …
The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones
The U.S. Supreme Court's Characterizations Of The Press: An Empirical Study, Sonja R. West, Ronnell Anderson Jones
Scholarly Works
The erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of the President’s and legislators’ characterizations of the news media, one branch of government has
received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This Article presents the findings of the first comprehensive empirical …
The Militia: A Definition And Litmus Test, Marcus Armstrong
The Militia: A Definition And Litmus Test, Marcus Armstrong
St. Mary's Law Journal
The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …
Ezra, Rehnquist, And St. Mary’S University, Lance Kimbro
Ezra, Rehnquist, And St. Mary’S University, Lance Kimbro
St. Mary's Law Journal
Abstract forthcoming.
“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo
“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo
St. Mary's Law Journal
Abstract forthcoming.
Nebraska Press Association V. Stuart: A Synopsis And Archive For A First Amendment Landmark, Sydney Brun-Ozuna
Nebraska Press Association V. Stuart: A Synopsis And Archive For A First Amendment Landmark, Sydney Brun-Ozuna
Honors Theses
This project explores in depth the background, arguments, precedents, and impact of the First Amendment Supreme Court case, Nebraska Press Association v. Stuart. This project utilizes newspaper coverage of the trial that informed the case and the case’s journey to the United States Supreme Court, as well as files obtained from the chambers of multiple former U.S. Supreme Court justices, publicly available oral arguments made before the court, and the ultimate decision from the Supreme Court, to create a holistic image of this case. Given the importance of this case in securing the right of the press to report on …