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Articles 1 - 30 of 396
Full-Text Articles in Law
The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli
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 …
Lethal Immigration Enforcement, Abel Rodríguez
Lethal Immigration Enforcement, Abel Rodríguez
Faculty Publications
Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures …
The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro
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 …
Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat
Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat
Articles
This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …
The Past As A Colonialist Resource, Deepa Das Acevedo
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 …
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
Scholarship@WashULaw
Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …
Fears, Faith, And Facts In Environmental Law, William W. Buzbee
Fears, Faith, And Facts In Environmental Law, William W. Buzbee
Georgetown Law Faculty Publications and Other Works
Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.
But the news is far from good. Despite the ambitious …
Just Extracurriculars?, Emily Gold Waldman
Just Extracurriculars?, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools--Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)--both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …
The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue
The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …
Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer
Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer
Scholarly Works
Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.
In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …
Justices Citing Justices, Jay D. Wexler
Justices Citing Justices, Jay D. Wexler
Faculty Scholarship
Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …
Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson
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
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 …
Debtor Needs To Have Benefitted From Fraud To Be Barred A Discharge Under 11 U.S.C. § 523(A)(2)(A), Elizabeth Tighe
Debtor Needs To Have Benefitted From Fraud To Be Barred A Discharge Under 11 U.S.C. § 523(A)(2)(A), Elizabeth Tighe
Bankruptcy Research Library
(Excerpt)
Title 11 of the United States Code (the “Bankruptcy Code”) provides that a court may grant a debtor a discharge of its debts, subject to certain conditions and exceptions. One exception to dischargeability is set forth in section 523(a)(2)(A), which bars a discharge from debt “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.”
A key phrase in the statute is “obtained by” and courts have applied a …
The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang
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 …
Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman
Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman
Faculty Scholarship
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments
The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol
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 …
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Presuming Trustworthiness, Ronnell Anderson Jones, Sonja R. West
Scholarly Works
A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
Scholarly Works
At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.
This Essay explores another overlooked instance of constitutional secularization. Many …
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Faculty Publications
(Excerpt)
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
Scholarship@WashULaw
At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority …
Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha
Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha
All Faculty Scholarship
In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.
The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson
The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson
Utah Law Faculty Scholarship
For over fifty years, the Fourth Amendment’s scope has been largely dictated by the Katz test, which applies the Amendment’s protections only when the government has violated a person’s “reasonable expectation of privacy.” This vague standard is one of the most criticized doctrines in all of American law, and its lack of coherence has made Fourth Amendment search law notoriously confusing. Things have become even more complex following the Supreme Court’s landmark decision in Carpenter v. United States, which has spawned its own alternative test for determining the Fourth Amendment’s scope. The emerging Carpenter test looks to the revealing nature …
Loper Bright And The Future Of Chevron Deference, Jack M. Beermann
Loper Bright And The Future Of Chevron Deference, Jack M. Beermann
Faculty Scholarship
The question presented in Loper Bright Industries v. Raimondo1 is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,2 indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.3 …
The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann
The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann
Faculty Scholarship
The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …
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.
Elucidation Strategies: A Case Study Of The U.S Supreme Court, Gordon Carroll
Elucidation Strategies: A Case Study Of The U.S Supreme Court, Gordon Carroll
Belmont University Research Symposium (BURS)
The research encompassed a study on the consistency in judicial interpretations and factors that influenced U.S. Supreme Court decisions. To do this, the study explored literature and theoretical perspectives relating to judicial interpretations and decisions. The target population entailed officers in the Office of the Solicitor General for their experience in Court rulings. Interviews were conducted among ten respondents, with data collected, coded, and analyzed. The study results were then presented, discussed, and conclusions derived from them. Generally, the study found serious inconsistencies in interpretations not only between justices but also in almost similar cases. Decisions by justices were conflicting …