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Supreme Court

Supreme Court of the United States

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Full-Text Articles in Law

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso Nov 2021

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.


City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas Oct 2021

City Of Los Angeles V. Lyons: How Supreme Court Jurisprudence Of The Past Puts A Chokehold On Constitutional Rights In The Present, Peter C. Douglas

Northwestern Journal of Law & Social Policy

The United States today has refocused its attention on its continuing struggles with civil rights and police violence—struggles that have always been present but which come to the forefront of the collective consciousness at inflection points like the current one. George Floyd—and uncounted others—die at the hands of the police, and there is, justifiably, outrage and a search for answers. Although the reasons why Black and Brown people are disproportionally subject to unconstitutional police violence are manifold, one reason lies in the Supreme Court’s 1983 decision in City of Los Angeles v. Lyons. While many scholars ...


A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet Jun 2021

A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet

Arkansas Law Review

I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication ...


A Proper Burial, Robert L. Tsai Jun 2021

A Proper Burial, Robert L. Tsai

Arkansas Law Review

In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe ...


Tainted Precedent, Darrell A.H. Miller Jun 2021

Tainted Precedent, Darrell A.H. Miller

Arkansas Law Review

We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability ...


There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller Jun 2021

There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller

Arkansas Law Review

There is no more appropriate place to discuss the Japanese American cases of World War II than in the pages of the Arkansas Law Review. This is not only because Arkansas was the only state outside the Western Defense Command to host not one but two of the War Relocation Authority’s (WRA) concentration camps for Japanese Americans. It is because one of the most important lawyers to oversee the development and administration of all the WRA camps was the dean under whose leadership this law review was founded: Robert A. Leflar. Leflar’s is not a name that constitutional ...


Korematsu, Hawaii, And Pedagogy, Sanford Levinson Jun 2021

Korematsu, Hawaii, And Pedagogy, Sanford Levinson

Arkansas Law Review

I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and ...


Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin Jun 2021

Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin

Arkansas Law Review

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed ...


Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck Jun 2021

Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck

Arkansas Law Review

How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer’s caution about decisions that have “harm[ed] not just the Court, but the Nation.” Part of an “Anticanon,” resting on “little more than naked racism and associated hokum” and “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute”? Perhaps. Or is it simply an opinion and result that “has long stood out as a stain that is almost universally recognized as a shameful ...


Symposium: Giving Korematsu V. United States A Sober Second Thought, Nick Bell, Emily Levy, Julian Sharp Jun 2021

Symposium: Giving Korematsu V. United States A Sober Second Thought, Nick Bell, Emily Levy, Julian Sharp

Arkansas Law Review

We are elated to present Professor Mark Killenbeck’s thought provoking article, Sober Second Thought? Korematsu Reconsidered. Killenbeck dives into the Korematsu opinion and its history with great care to determine whether it truly “has no place in law under the Constitution” as Chief Justice John Roberts declared in Trump v. Hawaii.1 While Korematsu’s result provides an understandable “impulse to condemn” it, Killenbeck shows us that focusing solely on the case’s result “stands apart from and in stark contrast to its most important place in the constitutional order: articulation of precepts and terminology that provide the foundations ...


“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom May 2021

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom

St. Mary's Law Journal

Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political ...


The Militia: A Definition And Litmus Test, Marcus Armstrong Apr 2021

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the militia ...


Active Virtues, Michael D. Gilbert, Mauricio A. Guim Jan 2021

Active Virtues, Michael D. Gilbert, Mauricio A. Guim

Washington University Law Review

Constitutional theory has long been influenced by the idea that the Supreme Court exercises “passive virtues,” avoiding politically divisive cases that threaten its legitimacy. The Article inverts the logic. Supreme Court Justices (and other judges too) do more than avoid divisive cases that could weaken the Court. They seek “unity” cases—meaning cases where law and politics align—that could strengthen the Court. When judges seek unity cases to enhance their legitimacy, they exercise active virtues.

We develop the theory of active virtues and demonstrate its use. Our case studies come from the U.S. Supreme Court and tribunals worldwide ...


Social Justice And The Supreme Court: Lessons From The Past, Vicki Lens Jan 2021

Social Justice And The Supreme Court: Lessons From The Past, Vicki Lens

Mitchell Hamline Law Journal of Public Policy and Practice

This article revisits over sixty years of Supreme Court decisions that have affected the poor and racial minorities, using a novel approach that considers the synergistic relationship between different doctrinal areas rather than focusing on one area. Specifically, I appraise the Supreme Court’s doctrinal contributions from 1953 to the present across three foundational elements of social justice on behalf of the poor and people of color: the school integration cases under the Equal Protection Clause, a series of cases under the Fourth Amendment which sanctioned the police tactic of stop-and-frisk, and attempts to secure economic security for the poor ...


Splitting Hairs: Resolving The Circuit Split On Aaa Incorporation In Class Arbitration Delegation, Jacob Petersen Jan 2021

Splitting Hairs: Resolving The Circuit Split On Aaa Incorporation In Class Arbitration Delegation, Jacob Petersen

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.


Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas Jan 2021

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.


Charles Reich, New Dealer, John Q. Barrett Jan 2021

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.


Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer Jan 2021

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.


Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks Jan 2021

Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks

Touro Law Review

No abstract provided.


Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn Jan 2021

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.


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 Jan 2021

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

Washington University Journal of Law & Policy

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 ...


Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg Jan 2021

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 ...


No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G.S. Hans Jan 2021

No Exit: Ten Years Of "Privacy Vs. Speech" Post-Sorrell, G.S. Hans

Washington University Journal of Law & Policy

Privacy and free speech are often described as oppositional forces. This Essay analyzes First Amendment jurisprudence emphasizing the ten years after Sorrell vs. IMS Health was decided in 2011. In this Essay, Hans contextualizes First Amendment challenges to privacy laws. Hans cautions that the Supreme Court has moved perilously close towards a jurisprudence under which privacy laws are nearly impossible to craft. Hans demonstrates that the need for privacy regulation can satisfy a strict scrutiny standard of review. Hans argues that the stakes for privacy are incredibly high and warrant careful consideration by the Supreme Court.


Kent State And The Failure Of First Amendment Law, Gregory P. Magarian Jan 2021

Kent State And The Failure Of First Amendment Law, Gregory P. Magarian

Washington University Journal of Law & Policy

Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters ...


Censorship Makes The School Look Bad: Why Courts And Educators Must Embrace The "Passionate Conversation", Frank D. Lomonte Jan 2021

Censorship Makes The School Look Bad: Why Courts And Educators Must Embrace The "Passionate Conversation", Frank D. Lomonte

Washington University Journal of Law & Policy

This Article analyzes the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. The Court held that students have no freedom to choose the content of school-sponsored newspapers or other curricular vehicles, so long as the justification for censorship is “reasonably related to legitimate pedagogical concerns.” LoMonte argues the Court erred in elevating the government’s reputation to a concern of constitutional value. LoMonte urges the Supreme Court to re-think its decision as it has done with respect to persons in other categories. Young people use their talents to organize reform movements and have political opinions worth hearing ...


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 Jan 2021

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 ...


A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf Jan 2021

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent ...


Supreme Court Reform And American Democracy, Ganesh Sitaraman, D. Epps Jan 2021

Supreme Court Reform And American Democracy, Ganesh Sitaraman, D. Epps

Vanderbilt Law School Faculty Publications

In How to Save the Supreme Court, we identified the legitimacy challenge facing the Court, traced it to a set of structural flaws, and proposed novel reforms. Little more than a year later, the conversation around Supreme Court reform has only grown louder and more urgent. In this Essay, we continue that conversation by engaging with critics of our approach. The current crisis of the Supreme Court is, we argue, inextricable from the question of the Supreme Court’s proper role in our democracy. For those interested in reform, there are three distinct strategies for ensuring the Supreme Court maintains ...


Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug Jan 2021

Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug

Indiana Law Journal

This Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the ...


The Constitutional Tort System, Noah Smith-Drelich Jan 2021

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the ...