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Articles 1 - 11 of 11
Full-Text Articles in Law
Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw
Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw
Online Publications
The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.
A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro
A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro
Online Publications
When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.
The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray
The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray
Online Publications
The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization gives states the maximum amount of freedom to restrict abortion. The decision is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to prohibit abortions in circumstances in which a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.
We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash
We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash
Online Publications
In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.
A 6-3 Supreme Court Could Allow The Government To Openly Discriminate In Its Policies, Katherine A. Shaw, Leah Litman
A 6-3 Supreme Court Could Allow The Government To Openly Discriminate In Its Policies, Katherine A. Shaw, Leah Litman
Online Publications
Over the past few days, the Supreme Court has agreed to hear challenges to hot-button Trump administration policies involving the border wall, an attempt to exclude noncitizens from the census breakdown used for allocating seats in Congress and limits on who can apply for asylum from Mexico.
Symposium: In “Gundy Ii,” Auer Survives By A Vote Of 4.6 To 4.4, Michael Herz
Symposium: In “Gundy Ii,” Auer Survives By A Vote Of 4.6 To 4.4, Michael Herz
Online Publications
Under the “Auer doctrine,” named for the 1997 decision Auer v. Robbins, courts accept an agency’s interpretation of its own ambiguous regulation unless that interpretation is clearly erroneous, or flatly inconsistent with the text of the regulation, or unreasonable, or something like that. Auer is a principle of long standing. Just how long is one of the sources of disagreement in Kisor v. Wilkie, but however you count, it is a doctrine universally understood as well-settled until relatively recently. But a revolt has been brewing.
Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz
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”?
How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw
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.
Why Did Liberals Join The Majority In The Masterpiece Case?, Katherine A. Shaw
Why Did Liberals Join The Majority In The Masterpiece Case?, Katherine A. Shaw
Online Publications
It was no surprise that Justice Anthony Kennedy, who has cast the decisive vote in so many important Supreme Court cases, wrote Monday’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The court ruled in favor of a Colorado baker named Jack Phillips who, on religious grounds, had refused to make a wedding cake for a gay couple.
Should The President’S Words Matter In Court?, Katherine A. Shaw
Should The President’S Words Matter In Court?, Katherine A. Shaw
Online Publications
The most striking aspect of last Thursday’s opinion by the United States Court of Appeals for the Fourth Circuit, which rejected the Trump administration’s latest effort to revive its travel ban for individuals from six predominantly Muslim countries, was its reliance on Donald Trump’s own words as candidate, president-elect and president. The court leaned particularly heavily on his now-famous campaign statement that he was “calling for a total and complete shutdown of Muslims entering the United States.”
Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz
Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz
Online Publications
I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about.