Law Commons^™

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

Faculty Articles

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Supreme Court Interruptions And Interventions: The Changing Role Of The Chief Justice, Tonja Jacobi, Matthew Sag

Faculty Articles

Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices improved in recent years, and whether the structural change in argument helped. It shows that interruptions decreased during the pandemic but then resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for …

The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang

Faculty Articles

The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the …

The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol

Faculty Articles

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

The Remaking Of The Supreme Court: Implications For Climate Change Litigation & Regulation, Mark P. Nevitt

Faculty Articles

With the nomination of Judge Amy Coney Barrett, the Supreme Court is a Senate vote away from a historic shakeup that will cement a conservative judicial majority for decades. While politicians, scholars, and the media have largely focused on what a Barrett nomination means for the Affordable Care Act and Roe v. Wade, the confirmation of Barrett would significantly impact a wide swath of environmental and climate change cases for years to come. As the Supreme Court is on the brink of a generational transformation, it is increasingly clear that we have a generation—and no longer—to reduce our Greenhouse …

Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag

Faculty Articles

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration …

Terrible Touhy: Navigating Judicial Review Of An Agency's Response To Third-Party Subpoenas, Zoe Niesel

Faculty Articles

The question of judicial review of a federal agency's response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court's holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.

This Article establishes that the circuit courts' approaches to judicial review of an agency's …

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Public Rights After Oil States Energy, Adam J. Macleod

Faculty Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory …

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Judicial Choice Among Cases For Certiorari, Tonja Jacobi, Álvaro Bustos

Faculty Articles

How does the Supreme Court choose among cases to grant cert? In a model with a strategic Supreme Court, a continuum of rule-following lower courts, a set of potential cases for revision, and a distribution of future lower court cases, we show that the Court takes the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (or conservative), then the most salient case is that which moves the discretionary range of the legal …

Taking Laughter Seriously At The Supreme Court, Tonja Jacobi, Matthew Sag

Faculty Articles

Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court’s serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter.

The performative nature of courtroom humor is apparent …

State Standing For Nationwide Injunctions Against The Federal Government, Jonathan R. Nash

Faculty Articles

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do …

Beyond The Borders Of The Law: Critical Legal Histories Of The North American West (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Tonja Jacobi, Kyle Rozema

Faculty Articles

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price

Faculty Articles

First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.

Second, the Court's pronouncement in the Chinese …

Political Ripples Ahead For Supreme Court Confirmation, Michael S. Ariens

Faculty Articles

No abstract provided.

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.