Law Commons^™

When Does The National Labor Relations Act Preempt A State Tort Claim For Property Damage Arising From Workers’ Alleged Failure To Take Precautions To Protect Employer Property Before Going On Strike?, Anne Marie Lofaso

Law Faculty Scholarship

Glacier Northwest’s unionized ready-mix concrete truck drivers went on strike after the parties had reached an impasse and their collective bargaining agreement had expired. Several strikers returned their trucks fully loaded, rendering the concrete useless, although the trucks were not damaged. This case presents a question whether the drivers’ strike, which is regulated by federal law, subjects their union to a state law tort claim for damage to the concrete.

Why Cost/Benefit Balancing Tests Don't Exist: How To Dispel A Delusion That Delays Justice For Immigrants, Joshua J. Schroeder

West Virginia Law Review

In 2022, the U.S. Supreme Court nullified its earlier presumption that indefinite immigrant detention without bond hearings is unconstitutional under Zadvydas v. Davis. If Zadvydas is a nullity, those who raise due process balancing tests during the post-removal-period in immigrant habeas review may need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s demise

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For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It …

Meaningless Dna: Moore’S Inadequate Protection Of Genetic Material, Natalie Alexander

Dickinson Law Review (2017-Present)

Moore v. Regents of the University of California represents the seminal case regarding the protection of genetic material. In this case, the California Supreme Court held that patients do not retain property rights in their excised genetic material; instead, informed consent laws serve as genetic material’s only protection. Many states have accepted the Moore court’s decision not to extend property rights to genetic material, and most states choose to protect genetic material through informed consent alone. Moore and informed consent do not adequately protect genetic material, creating unjust results in which “donors” of genetic material have little to no recourse …

Dueling Textualisms Or Multimodal Analysis? Using Bostock To Show Why No One Is Really A Textualist, Anne Marie Lofaso

Law Faculty Scholarship

No abstract provided.

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

When Is A Debt "Obtained By" Fraud?: Reconsideration Of The Fraud Nondischargeability Exception Under Section 523(A)(2) Of The Bankruptcy Code, Theresa J. Pulley Radwan

West Virginia Law Review

No abstract provided.

Pov: What Rights Could Unravel Next, In Light Of Draft Opinion By Scotus Overturning Roe V. Wade, Robert L. Tsai

Shorter Faculty Works

Beyond what Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization portends for the future of abortion rights is the striking method of analysis he employs in the reported draft. Despite his many efforts to reassure that the opinion “does not undermine” other constitutional rights “in any way,” it actually outlines a roadmap for the withdrawal of other cherished constitutional rights.

Is The End Of Roe V. Wade Near? Leaked Scotus Brief Says Yes, Nicole Huberfeld, Linda C. Mcclain

Shorter Faculty Works

Protesters on both sides of the abortion debate descended on the US Supreme Court Monday night and into Tuesday after a leaked secret draft of a US Supreme Court opinion indicated that a majority of justices support overturning Roe v. Wade, after almost 50 years of legalized abortion rights in America. If finalized, possibly as soon as this summer, the bombshell could trigger a cultural tsunami across American life, forcing some women to travel to another state for an abortion and putting the divisive issue at the heart of the fall midterm elections.

“She’S Earned This”: Angela Onwuachi-Willig Rejoices In Historic Confirmation, Angela Onwuachi-Willig

Shorter Faculty Works

Angela Onwuachi-Willig, the dean of Boston University’s School of Law—the first Black woman to be dean of a top-20 law school—is rejoicing. The first Black woman has been confirmed to the US Supreme Court.

Onwuachi-Willig has had Ketanji Brown Jackson’s back from the moment President Biden announced he would nominate the federal judge to the nation’s highest court.

Bu Celebrates Ketanji Brown Jackson’S Rise To Us Supreme Court, Nicole Huberfeld

Shorter Faculty Works

The operative word about Ketanji Brown Jackson is “first.” Once she is sworn in to the US Supreme Court, after being confirmed by the Senate Thursday 53-47 (three Republicans joined Democrats in supporting her), she will be the first Black woman on the high court in its 233 years. And she will be the first former public defender to join the court. Brown Jackson—the daughter of a lawyer and a school principal and currently a federal appellate judge in Washington, D.C.—won Senate confirmation after a bruising hearing last week where Republican senators tried to label her as an extreme liberal …

The Migrant Protection Protocols: Two Administrations, One Outcome, Alexandria Doty

Immigration and Human Rights Law Review

Immigrants have long seen the southern border of the United States as the last stop before they are able to enter the land of the free. The Department of Homeland Security, however, strives to make the southern border as inhospitable as possible to those hoping to cross. The Migrant Protect Protocols is the latest attempt from Washington to block access to the United States to immigrants who are detained by forcibly returning them to Mexico to await their deportation proceedings. While Americans have read stories of families being torn apart at the border or listened to interviews of politicians promising …

Is A Locomotive In Use And Therefore Subject To Locomotive Inspection Act Liability When It Makes A Temporary Stop?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: LeDure v. Union Pacific Railroad Company. Bradley LeDure, a long-time locomotive engineer for Union Pacific, slipped on the slick surface of a locomotive while it was idle but powered on, seriously injuring himself. If Union Pacific violated safety regulations under the Locomotive Inspection Act, then it would be negligent per se. But that theory of liability is only available if the locomotive was in use at the time of the accident. The case presents a question of statutory interpretation of the term use.

Law Dean’S Letter Urges Confirmation Of Biden’S Historic Scotus Pick, Ketanji Brown Jackson, Angela Onwuachi-Willig

Shorter Faculty Works

In a letter citing Black women’s underrepresentation on the federal bench, Angela Onwuachi-Willig, dean of the BU School of Law, and more than 200 other Black women law deans and professors urged the US Senate on Friday to confirm President Joe Biden’s nominee, Ketanji Brown Jackson, to the nation’s highest court “swiftly and with bipartisan support.”

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

Faculty Scholarship at Penn Carey Law

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers

Scholarly Articles

In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.

What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that …

This Land Is Your Land: The Dark Canon Of The United States Supreme Court In Natural Resources Law, Oliver A. Houck

Natural Resources Journal

This article treats four Supreme Court opinions that have had a lasting impact, largely negative, on public lands and resources. They rest on highly selective statements of fact, and dubious footing with precedent and statutory law. As a quartet they make the protection of natural resources extremely difficult. Resources that, in law, belong to us all. The first case, Southern Utah Wilderness Association, opened up a designated Wilderness Area too off-road vehicle use, where these uses are explicitly prohibited by law. In this opinion Justice Scalia managed, inter alia, to turn congressionally-mandated management plans into (unenforceable) wish lists, and find …

Gertrude Jenkins, Unplugged, Todd C. Peppers

Scholarly Articles

Gertrude Jenkins worked for U.S. Chief Justice Harlan Fiske Stone until his death in 1946. Adept at multi-tasking, she also ran a boarding house to make more money. A position as a floating secretary was created for Jenkins at the Court, and she worked in other chambers as well as the Court library until October 1949, when she accepted a position in Justice Frankfurter’s chambers. Jenkins retired in August 1953.

Gertrude Jenkins’s letters neither shed light on the grand constitutional issues of her day nor provide insights into the justices’ jurisprudential views. They will not cause historians to radically reevaluate …

Democracy And Disenchantment, Ashraf Ahmed

Faculty Scholarship

During the latter half of the Trump presidency, as it became increasingly clear that the Supreme Court would remain solidly conservative for the foreseeable future, Samuel Moyn and Ryan Doerfler declared war. In popular and scholarly venues, they have steadily built a case for curtailing the power of the nation’s highest court. Their arguments have been both pragmatic and principled. They have underlined, for instance, the risks the Roberts Court poses to progressive goals such as addressing climate change1 and granting student debt relief. More broadly, they object to a “supra-democratic court exercising its current, expansive legislative veto.” For Doerfler …

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin

Faculty Scholarship

The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people.One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination.

“Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating—but never directly holding— that corporations are not protected by the Self-Incrimination Clause.

But the fact that a corporation cannot invoke the Fifth Amendment does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction …

Keep Passing The Baton: Reflections On The Legacy Of Ruth Bader Ginsburg, Angela Onwuachi-Willig

Faculty Scholarship

For those who care about justice, particularly for marginalized communities, September 18, 2020 brought immense heartbreak.² On that day, which happened to be Rosh Hashanah, Justice Ginsburg, who had previously written about how her religious background shaped her career as a lawyer, ³ passed away.

When Justice Ginsburg passed, many highlighted that a person who dies on Rosh Hashanah, the start of the Jewish New Year, is a "Tzadik," which is a title given to people of great righteousness. ⁴ For example, Nina Totenberg, a reporter for National Public Radio, explained, "A Jewish teaching says those who died just …

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

Faculty Scholarship at Penn Carey Law

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the …

Americans For Prosperity Foundation V. Matthew Rodriquez, Nancy Mclaughlin

Utah Law Faculty Scholarship

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.

Brief Of Amici Curiae Scholars Of The Law Of Non-Profit Organizations In Support Of Respondent: Americans For Prosperity Foundation V. Matthew Rodriguez, Nos. 19-251 & 19-255, Ellen P. Aprill, Roger Colinvaux, Sean Delany, James Fishman, Brian D. Galle, Philip Hackney, Jill R. Horwitz, Cindy Lott, Ray D. Madoff, Jill S. Manny, Nancy A. Mclaughlin, Richard Schmalbeck

Amici Briefs

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

Faculty Scholarship at Penn Carey Law

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20^th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …

“Destructive To Judicial Dignity”: The Poetry Of Melville Weston Fuller, Todd C. Peppers, Mary Crockett Hill

Scholarly Articles

Although there have been many debates over the relevant qualifications for a Supreme Court nominee, Fuller’s nomination was the first—and last—time in history where the quality of a nominee’s verse was debated in national and regional newspapers. In this essay, we weigh the merits of two claims leveled against Fuller: (1) he was a mediocre poet, and (2) his penchant for verse colored and polluted his judicial opinions. As judge and jury, we conclude that neither charge is supported by a preponderance of the evidence.

Book Review: The Rule Of Five, Ashlee Carrasco

Natural Resources Journal

The Rule of Five reads like a novel that ought to be adapted for the big screen, despite its accurate overview of the landmark Supreme Court case, Massachusetts v. EPA. Richard J. Lazarus does an excellent job of honoring the legacy of those who fought long and hard to bring the issue of climate change to the Supreme Court for the first time. While the decision in Massachusetts v. EPA was a landmark decision handed down by the Supreme Court of the United States, the potential to bore the reader with procedural history and legal jargon was ever-present. However, Lazarus …

Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg

Faculty Publications

Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …

Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert

UF Law Faculty Publications

This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …