Courts Commons^™

Supreme Court Institute Annual Report, 2020-2021, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2020—corresponding to the 2020-2021 academic year— the Supreme Court Institute (SCI) provided moot courts for advocates in 57 of the 58 cases argued at the Supreme Court, offered our annual press and student term preview programs, and continued to integrate the moot court program into the Law Center curriculum. As in past Terms, the varied affiliations of advocates mooted reflect SCI’s commitment to assist advocates without regard to the party represented or the position advanced.

Responding to the COVID-19 pandemic, the Supreme Court took the unprecedented step of hosting all OT 2020 …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Initiative In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Steven A. Engel, Michael H. Mcginley, Eric D. Hageman, Justin M. Romeo, Lincoln Davis Wilson

Court Briefs

No. 20-1800
Harold Shurtleff v. City of Boston

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Invoking the specious rationale of “government speech,” the City of Boston unconstitutionally singled out religious expression for hostile treatment. By lumping speech based on “religion” together with speech deemed “inappropriate,” “offensive,” “discrimin[atory],” or “prejudice[d],” Pet.App.20, the City adopted the increasingly common view that promoting our Nation’s vibrant pluralism requires the exclusion of religious perspectives from the public square. But that view is antithetical to the Founders’ conception of religion as central—not peripheral—to …

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

St. Mary's Law Journal

Abstract forthcoming.

Table Of Contents

University of Richmond Law Review

No abstract provided.

Thank You Glenice

University of Richmond Law Review

No abstract provided.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article analyzes the past year of Supreme Court of Virginia opinions, revisions to the Virginia Code, and Rules of the Supreme Court of Virginia impacting civil procedure here in the Commonwealth. On top of those changes, dealing with the pandemic certainly was a trying time for practitioners, the judiciary, and all those involved in the administration of justice and the law. The author appreciates the sacrifices made by all those individuals and sympathizes with all who lost a loved one in this time.

The Article first addresses opinions of the Supreme Court of Virginia, then new legislation enacted during …

Criminal Law And Procedure, Brittany A. Dunn-Pirio, Timothy J. Huffstutter, Mason D. Williams

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Family Law, Rachel A. Degraba

University of Richmond Law Review

This Article provides a practical update on recent changes in Virginia law in the family law realm, including, but not limited to, divorce, custody and visitation, adoption, child support, and equitable distribution of assets and debts. There have been significant legislative amendments regarding the divorce process with the introduction of the Uniform Collaborative Law Act as well as the removal of the corroborating witness requirement for no-fault divorce matters. This succinct synopsis outlines legislative changes as well as significant judicial decisions within the past year.

Taxation, Craig D. Bell

University of Richmond Law Review

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (“Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year.

Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, and discrete local taxes.

The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia …

Juvenile Justice, Valerie Slater

University of Richmond Law Review

This Article serves as a review of recent juvenile justice law and legislative trends in Virginia. This Article will review both codified changes and relevant proposed legislation that did not pass the Legislature to more fully identify trends in juvenile justice. While this Article does not capture every proposed or codified change to Virginia juvenile justice law, it does identify and present the most significant changes and trends over the last two legislative sessions to the laws governing the entrance of youth into the criminal legal system, the treatment of Virginia’s youth directly involved in the criminal legal system, and …

Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle

University of Richmond Law Review

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …

Disrupting Death: How Specialized Capital Defenders Ground Virginia’S Machinery Of Death To A Halt, Corinna Barrett Lain, Douglas A. Ramseur

University of Richmond Law Review

Virginia’s repeal of capital punishment in 2021 is arguably the most momentous abolitionist event since 1972, when the United States Supreme Court invalidated capital punishment statutes nationwide. In part, Virginia’s repeal is momentous because it marks the first time a Southern state abolished the death penalty. In part, it is momentous because even among Southern states, Virginia was exceptional in its zeal for capital punishment. No state executed faster once a death sentence was handed down. And no state was more successful in defending death sentences, allowing Virginia to convert death sentences into executions at a higher rate than any …

Wills, Trusts, And Estates, Katherine E. Ramsey, Sarah J. Brownlow

University of Richmond Law Review

The 2021 Virginia General Assembly did not pass any major laws governing estates or trusts this year. However, it did pass several legislative efforts related to the field and of which practitioners should be aware. Perhaps the most relevant update given the COVID-19 pandemic was the Legislature’s effort to modernize procedures for electronic notarizations and electronic recording of documents. Another new law was designed to improve retirement savings participation rates in the Commonwealth by requiring certain employers to enroll their employees by default in a new, state-facilitated individual retirement account program. The Legislature also passed several bills designed to make …

Foreword, Joseph Giarratano

University of Richmond Law Review

No abstract provided.

In Memoriam Clint Andrew Nichols, Frank Talbott V

University of Richmond Law Review

No abstract provided.

Preface, Andy V. O'Connell

University of Richmond Law Review

No abstract provided.

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

The Rooker-Feldman Doctrine: The Case For Putting It To Work, Not To Rest, Bradford Higdon

University of Cincinnati Law Review

No abstract provided.

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

The Iron Rule, Jacob Bronsther, Guha Krishnamurthi

Cardozo Law Review

No abstract provided.

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Court Packing As An Antidote, Rivka Weill

Cardozo Law Review

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the …

I Choose, You Decide: Checking The Judiciary From Within, Jeremy N. Sheff

Cardozo Law Review

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus either on what Ryan Doerfler and Samuel Moyn call “personnel reforms”—changes to the selection, appointment, or tenure of Justices—or on what they call “disempowering reforms”—changes that divert some of the judiciary’s authority to the political branches, for example via jurisdiction stripping. I propose a different—and perhaps complementary—reform, which would achieve some of the goals of both types of reform without requiring a constitutional amendment. I propose that the selection of a case for the Supreme Court’s discretionary appellate docket should be performed by a …

Brief Of Religious-Liberty Scholars Douglas Laycock, Steven T. Collis, Helen M. Alvare, Nathan S. Chapman, Elizabeth A. Clark, Robert F. Cochran, Teresa S. Collett, W. Cole Durham, Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael P. Moreland, And Michael Stokes Paulsen As Amici Curiae In Support Of Petitioner, Steven T. Collis, Douglas Laycock, Richard W. Garnett

Court Briefs

No. 21-5592
John H. Ramirez v. Bryan Collier

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Summary of Argument

The state substantially burdens the exercise of religion if it coerces people to change their religious behavior or if it physically prevents religious behavior from occurring.

Brief For The Partnership For Inner-City Education, Council Of Islamic Schools In North America, And National Council Of Young Israel As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett Iv, John A. Meiser, Michael H. Mcginley

Court Briefs

No. 20-1088
David and Amy Carson v. A. Pender Makin

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court should reverse the decision below and hold that the First Amendment permits no distinction between discrimination against religious groups based on their religious status and discrimination based on their religious use of generally available state benefits.

Brief Of Amici Curiae Benedictine College And Franciscan University Of Steubenville In Support Of Petitioners, Richard W. Garnett Iv, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 21-145
Gordon College v. Margaret DeWeese-Boyd

On Petition for Writ of Certiorari to the Supreme Judicial Court of Massachusetts

From the Summary of Argument

This Court should grant certiorari to make clear that the First Amendment guarantees religious colleges and universities the same vital protections that safeguard a religious grade school’s freedom to select the teachers who personify and teach its faith. Despite this Court’s recent admonition that such protections apply to a religious school’s selection of “any ‘employee’ . . . who serves as a messenger or teacher of its faith,” Our Lady of Guadalupe Sch. v. …

Brief Of Amicus Curiae Ethics And Public Policy Center In Support Of Petitioners And Reversal, Richard W. Garnett, Charles J. Cooper, Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf

Court Briefs

No. 19-1392
Thomas E. Dobbs v. Jackson Women's Health Organization

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

From the Introduction and Summary of the Argument

By the narrowest of margins, this Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by …

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication: Reclaiming Epistemic Justice For Gender-Based Asylum Seekers, David Ingram

Philosophy: Faculty Publications and Other Works

Abstract: Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent …