Law Commons^™

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

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Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

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As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Rbg And Gender Discrimination, Eileen Kaufman

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No abstract provided.

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

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No abstract provided.

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

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Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron

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No abstract provided.

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

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No abstract provided.

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

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No abstract provided.

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

The Paradox Of Justice John Paul Stevens, Sonja R. West, Dahlia Lithwick

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In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost.

Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding leadership. …

Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin

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The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

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An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen

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The Supreme Court ordinarily supports its establishment of major constitutional principles with detailed justifications in its opinions. On occasion, however, the Court proceeds in a very different way, issuing landmark pronouncements without giving any supportive reasons at all. This Article documents the recurring character and deep importance of these “quietrevolution rulings” in constitutional law. It shows that—however surprising it might seem—rulings of this sort have played key roles in shaping incorporation; reverse incorporation; congressional power; federal courts; and freedom-ofspeech, freedom-of-religion, and equal-protection law. According to the synthesis offered here, these rulings fall into two categories. One set of cases involves …

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collings Jr.

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Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

Loud And Soft Anti-Chevron Decisions, Michael Kagan

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This Article proposes a methodology for interpreting the Supreme Court's long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful approach, because sometimes Justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be …

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policing, Julian A. Cook

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On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these …

The Supreme Court’S Limited Public Forum, Sonja R. West

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When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these …

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

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Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett

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Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking—one of only four broad categories of agency action—and policymakers …

Justice Stevens, The Writer, Sonja R. West

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In any discussion about United States Supreme Court Justice John Paul Stevens, you're likely to hear him labeled in a variety of ways--as a brilliant “judge's judge,” the highly successful leader of the Court's more liberal wing, the prolific “maverick,” and a shrewd questioner from the bench. You might also hear him described simply as a polite and humble Midwesterner, bow-tie aficionado and diehard Cubs fan. Yet while Justice Stevens is and was all of these things, there is another important title he richly deserves yet often does not receive--Justice Stevens, the excellent writer.

This essay strives to close that …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

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The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Introduction To The U.S. Feminist Judgments Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

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The U.S. Feminist Judgments Project turns attention to the U.S. Supreme Court. Contributors to this volume challenge the formalistic concepts that U.S. Supreme Court opinions are, or should be, written from a neutral vantage point and that they are, or should be, based on deductive logic or “pure” rationality. When the project’s authors brought their own feminist consciousness or philosophy to some of the most important (and supposedly “neutral”) decisions and assertions about gender-related issues, the judicial decisions took on a very different character. Feminist consciousness broadens and widens the lens through which we view law and helps the decision …

The Institutionalization Of Supreme Court Confirmation Hearings, Paul M. Collins Jr., Lori A. Ringhand

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This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook

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On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Workplace Law Cases In The Tenth Term Of The Roberts Court: Between The Usual Ideological Lines, Ruben J. Garcia

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My review of the Supreme Court's October 2014 Term will focus on cases involving workplace law statutes such as the Fair Labor Standards Act of 1938 (FLSA), Title VII of the Civil Rights Act of 1964 (Title VII), the Labor Management Relations Act of 1947 (LMRA) and the Whistleblower Protection Act of 1989 (WPA). These cases can be viewed through the lens of the following trends: 1) the Court continues its judicial narrowing of the Fair Labor Standards Act and federal labor law; 2) plaintiffs who have the backing of the administrative agencies are more likely to be successful; and …

Zivotofsky Ii's Two Visions For Foreign Relations Law, Harlan G. Cohen

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The five opinions in Zivotofsky v. Kerry – four by the Supreme Court’s Republican-nominated Justices – exposed fault-lines over foreign relations law that have remained hidden in many of the Court’s other cases. This short essay, part of an AJIL Unbound Agora on the case, explores the most notable of these fissures – that between Justice Kennedy, who wrote the majority opinion, and Chief Justice Roberts, who dissented. Their disagreement in this case highlights the two Justices’ very different visions of U.S. foreign relations law and reveals the dynamic that has defined the direction of the Court over the last …

Formalism And Distrust: Foreign Affairs Law In The Roberts Court, Harlan G. Cohen

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When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the RobertsCourt foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, …

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

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Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.