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Articles 1 - 30 of 3309
Full-Text Articles in Law
The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood
The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood
SLU Law Journal Online
This article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected …
Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson
Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson
University of Cincinnati Law Review
No abstract provided.
Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud
Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud
St. Mary's Law Journal
No abstract provided.
Growing, Growing, Gone: How Dobbs Fundamentally Altered The Way Reproductive Freedom, Private And Professional Liability, And Constitutional Rights Will Be Analyzed In A Post–Roe America, Amanda J. Sharp
San Diego Law Review
This Note examines the Dobbs decision and its implications. Part II analyzes the history of abortion rights in the United States, including the role Dobbs played in overturning precedential cases. Part III describes the legal implications of Dobbs, including the status of abortion rights and how this decision altered the state of women’s healthcare. It then addresses Dobbs’ indirect implications, including its potential impacts on the foster care system, implied liability in healthcare professions, data privacy laws, and the employer-employee relationship. Part IV briefly proposes next steps that could be taken and concludes with a call to action.
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi
Touro Law Review
The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …
Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black
Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black
Touro Law Review
There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson
Indiana Journal of Law and Social Equality
This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …
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 …
Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo
Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo
Touro Law Review
As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Journal Articles
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 longstanding …
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman
Seattle University Law Review
After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells
Seattle University Law Review
Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …
From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes
From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes
Roger Williams University Law Review
No abstract provided.
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 …
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 …
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 Curious Case Of Justice Neil Gorsuch, Justin Burnworth
The Curious Case Of Justice Neil Gorsuch, Justin Burnworth
Pace Law Review
Justice Gorsuch has a propensity for unexpected decisions. His opinions in Bostock v. Clayton County, United States v. Vaello Madero, and McGirt v. Oklahoma confounded the legal community at large. Some argue that his Western upbringing played a role. Others argue that his time clerking for Justice Kennedy primed him for unpredictable decisions. These explanations do not get at the core of Justice Gorsuch’s legal reasoning. This article dives into the depths of these opinions to extract his “Enduring” theories of law. I argue that legal scholarship has incorrectly viewed these three decisions as isolated incidents when they are best …
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
American Indian Law Journal
No abstract provided.
Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re
Does The Discourse On 303 Creative Portend A Standing Realignment?, Richard M. Re
Notre Dame Law Review Reflection
Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. …
The Applications Docket, Greg Goelzhauser
The Applications Docket, Greg Goelzhauser
Georgia Law Review
The Supreme Court’s applications docket, often misleadingly called the “shadow docket” or “emergency docket,” is controversial, complex, and poorly understood. Using original data spanning nearly two decades, I unravel the docket’s empirical foundations. Applications practice changed fundamentally in recent years. Contrary to conventional wisdom, dispositions declined on average, but this conceals divergent trends: among applications involving stays and injunctions, capital dispositions decreased while noncapital dispositions increased. Moreover, noncapital applications now comprise a larger share of the docket than capital applications. This shift enhances docket salience because, as I show, most capital applications are denied simultaneous to denying plenary review, while …
121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig
121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig
Georgia Law Review
No abstract provided.
Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows
Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows
Georgia Law Review
Congress unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. The Act marked the culmination of a decades-long dialogue between Congress and the Supreme Court. RLUIPA’s passage embodied Congress’s resolve to provide religious free exercise protections—particularly as it pertained to religious land use. Since 2000, however, RLUIPA’s Equal Terms Provision has been subject to differing judicial interpretations, resulting in an expanding circuit split. This Note analyzes the circuit split and offers guidance to future interpreters.
First, this Note examines the social, legislative, and judicial history leading to RLUIPA’s enactment. Second, it analyzes the contours of interpretations …
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 …
What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris
What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris
University of Miami Law Review
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.
In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier
University of Miami Law Review
Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …
Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow
University of Miami Law Review
In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …
You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell
You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell
University of Miami Law Review
For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen
University of Miami Law Review
Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …
Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd
Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd
Keep Up With the Latest News from the Law School (blog)
The Indiana University Maurer and McKinney Schools of Law jointly will convene leading scholars and practitioners to discuss the implications of the 2023 United States Supreme Court case of Sackett v. EPA. The event, “Sackett v. EPA: What the Supreme Court’s Decision Means for Regulation and Wetlands Conservation,” will take place November 10 in the Wynne Courtroom and Steve Tuchman and Reed Bobrick Atrium at IU McKinney in Indianapolis.
Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady
Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady
Liberty University Journal of Statesmanship & Public Policy
The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.
The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …