Law Commons^™

A New Era: Digital Curtilage And Alexa-Enabled Smart Home Devices, Johanna Sanchez

Touro Law Review

No abstract provided.

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …

Herman Melville’S Billy Budd: Why This Classic Law And Literature Novel Endures And Is Still Relevant Today, Rodger Citron

Touro Law Review

No abstract provided.

State Of The Unions: The Impact Of Janus On Public University Student Fees, Jonathan Kaufman

Georgia Law Review

In Janus v. American Federation of State, County,
and Municipal Employees, Council 31, the U.S.
Supreme Court overruled forty-one years of precedent
that had allowed public-sector unions to collect
agency-shop fees from nonmembers. The Court ruled this
mandatory fee collection unconstitutional as a violation
of nonmember First Amendment rights. This decision
may pose problems for other public entities, such as
public universities, who also collect mandatory fees that
support political speech.

Case Law On American Indians August 2018-2019, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn

Utah Law Review

Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.

However, as important as the concept of judicial impartiality may be, it is worth pausing to …

Justice Scalia Got It Right, But For The Wrong Reasons: Scalia’S Recognition Of The Supreme Court’S “Southern Exception” In U.S. Constitutional Jurisprudence And The Connection Of “Southern Exceptionalism” To “American Exceptionalism", James D. Wilets

University of Miami Law Review

The late Justice Scalia has repeatedly and sardonically noted that the Supreme Court has discounted the views of Southern states in determining whether there is a consensus among the states with regards to a Constitutional norm. This Article has termed that Supreme Court position as “Southern Exception” and can be viewed as an effort by some Justices to address the unique social, economic, religious and cultural traditions in the South engendered by its unique" and “exceptional” history. This Article will also explore how this "Southern Exception" affected American jurisprudence to the point of rendering it "exceptional" from much of the …

November 19, 2019: Court-Packing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Court-Packing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

Arbitration And The Federal Balance, Alyssa King

Indiana Law Journal

Mandatory arbitration of statutory rights in contracts between parties of unequal bargaining power has drawn political attention at both the federal and state level. The importance of such reforms has only been heightened by the Supreme Court’s expansion of preemption under the FAA and of arbitral authority. This case law creates incentives for courts at all levels to prefer expansive readings of an arbitration clause. As attempts at federal regulation have stalled, state legislatures and regulatory agencies can expect to be subject to renewed focus. If state legislatures cannot easily limit arbitrability, an alternative is to try reforms that seek …

Supreme Court Stays Asylum Injunction: Signal On The Merits Or Procedural Snag?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Revisiting Masterpiece Cakeshop - Free Speech And The First Amendment: Can Political Correctness Be Compelled, Terri R. Day

Hofstra Law Review

This Article questions whether religious objectors, who refuse to provide their services in facilitating a same-sex marriage, are discriminating on the basis of sexual orientation or refusing to adopt a politically correct, albeit legal, view of marriage. If the latter, then, compelling political correctness can have a boomerang effect, creating more LGBTQ discrimination. Given this administration's strong support for religious freedom and two new conservative justices on the Supreme Court, a legislative religious exemption in public accommodation laws may be safer for LGBTQ rights than risking a Supreme Court ruling constitutionally enshrining a religious right to discriminate.

After the Introduction …

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

July 19, 2019: Justice Stevens R.I.P., Bruce Ledewitz

Hallowed Secularism

Blog post, “Justice Stevens R.I.P.“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to …

Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian

Faculty Publications

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that …

Elite Patent Law, Paul Gugliuzza

Faculty Scholarship

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found …

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

Scotus's Second Take On Trademark Registration As Speech, Christine Farley

Editorial Contributions

Professor Farley offers her take on Iancu v. Brunetti URL: https://patentlyo.com/patent/2019/06/scotuss-trademark-registration.html

June 23, 2019: All The Justices Get Religion Wrong Again, Bruce Ledewitz

Hallowed Secularism

Blog post, “All the Justices Get Religion Wrong Again“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 22, 2019: What The Supreme Court Should Have Said, But Didn't, In The Maryland Cross Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “What the Supreme Court Should Have Said, But Didn't, in the Maryland Cross Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Locke Exception: What Trinity Lutheran Means For The Future Of State Blaine Amendments, Christopher Tyler Prosser

Pepperdine Law Review

At its core, this Article is about whether states have the discretion to discriminate against religious organizations by excluding them from generally available secular government aid programs. In the wake of the Supreme Court’s 2004 decision in Locke v. Davey, the federal courts have developed conflicting interpretations of whether the Court’s holding in Locke permits states to exclude religious organizations from generally available secular aid programs. However, the Court’s 2017 decision in Trinity Lutheran v. Comer has cast doubt on the ability of states to exclude religious organizations from such programs and seemingly restricts the Court’s prior decision in Locke …

Supreme Court Institute Annual Report, 2018-2019, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2018 – corresponding to the 2018-2019 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 99% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. The varied affiliations of advocates mooted this Term reflect SCI’s firm commitment to provide assistance to advocates without regard to the party represented or the position advanced.

A list of all SCI moot courts held in OT 2018 – …

Ask The Author: Interview With Justice John Paul Stevens, Katherine A. Shaw

Online Publications

Justice John Paul Stevens sat down for a wide-ranging telephone interview with Kate Shaw. The occasion was the recent publication of his memoir, “The Making of a Justice: Reflections on My First 94 Years” (Little, Brown and Company, 2019). A lightly edited transcript of the conversation follows.

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …

Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Kexel Chabot

Utah Law Review

As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether political factors predict …

Cell Phones Are Orwell's Telescreen: The Need For Fourth Amendment Protection In Real-Time Cell Phone Location Information, Matthew Devoy Jones

Cleveland State Law Review

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor. The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States …

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman

Cleveland State Law Review

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates …

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues …

Analyzing The Efficiency Of Response To News Regarding Legalization Of Sports Wagering, Kevin Krieger, Justin L. Davis

International Conference on Gambling & Risk Taking

A landmark decision (Murphy v. NCAA) by the Supreme Court of the United States (SCOTUS) in 2018 ruled the federal government could not prohibit states from allowing sports wagering. While the implications of this decision are far reaching at both an industry and societal level, our study assesses the market response to information available throughout the various phases leading up to this decision by SCOTUS. The timeline of events preceding the SCOTUS decision is tracked, and stock performances of relevant, publicly traded firms are analyzed across three inflection points. Findings suggest the market failed to adequately acknowledge key …