Jurisprudence Commons^™

The Roberts Court's Transformative Religious Freedom Cases: The Doctrine And The Politics Of Grievance, Stephen M. Feldman

Cardozo Journal of Equal Rights & Social Justice

The article argues that the Roberts Court has adopted a conservative approach in religious freedom cases, shifting toward a jurisprudence that favors Christianity and undermines the separation of church and state. This approach, rooted in tradition and a de facto Christian America, has led to significant changes in both Establishment Clause and Free Exercise Clause doctrines. The Court's decisions increasingly protect Christian practices and institutions while marginalizing non-Christian religions, reflecting a broader ideological shift toward judicial engagement and away from principles of federalism and judicial restraint.

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

Qualified Sovereignty, Kate Sablosky Elengold, Jonathan D. Glater

Washington Law Review

Sometimes acts of the federal government cause harm; sometimes acts of contractors hired by the federal government cause harm. In cases involving the latter, federal contractors often invoke the sovereign’s constitutionally granted and doctrinally expanded supremacy to restrict avenues for the injured to recover even from private actors. In prior work, we analyzed how federal contractors exploit three “sovereign shield” defenses—preemption, derivative sovereign immunity, and derivative intergovernmental immunity—to evade liability, accountability, and oversight.

This Article considers whether, when, and how private federal contractors should be held accountable in a court of law. We argue that a contractor should be required …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

The Case Of The Smart City, Bruce Peabody, Kyle Morgan

Brigham Young University Journal of Public Law

January 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our …

Analyzing The Implications Of The Supreme Court's Application Of The Canons Of Construction In Recent Federal Indian Law Cases, Meredith Harris J.D.

American Indian Law Journal

Federal Indian law in the United States has historically relied on application of the Indian Canons of Construction (“Canons”). The courts have relied on these principles since 1832. However, their application has not been consistent. Indeed, the Canons are discretionary which has led to judicial avoidance. Yet, recent Supreme Court opinions demonstrate a resurgence of the Canons and a trend towards a textualist approach, both of which involve greater deference to tribal understandings. Ultimately, the opinions in United States v. Washington, Washington State Dept. of Licensing v. Cougar Den, Herrera v. Wyoming, and McGirt v. Oklahoma, …

On Lenity: What Justice Gorsuch Didn’T Say, Brandon Hasbrouck

Scholarly Articles

This Essay was first published online at 108 Va. L. Rev. Online 239 (2022).

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. …

Less Restrictive Alternatives And The Ancillary Restraints Doctrine, Thomas B. Nachbar

Seattle University Law Review

In Ohio v. American Express, both the majority and dissent introduced into Supreme Court antitrust jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been part of Supreme Court’s approach to the rule of reason, which generally evaluates restraints of trade by balancing their anticompetitive and procompetitive effects.

American Express was the first Supreme Court case to mention a less restrictive alternatives test, potentially representing a major shift in antitrust law, but it was not the last. In 2021’s …

Textualism, Dynamism, And The Meaning Of "Sex", Bill Watson

Cardozo Law Review de•novo

A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries critically examines textualism, both in general and as applied in Bostock v. Clayton County. This Essay makes three points in reply. First, the authors criticize strawman versions of textualism that no mainstream legal interpreter claims to hold. Second, the authors’ examples of “societal dynamism” do not put any pressure on textualism properly understood. And third, the authors’ corpus-linguistics analysis of the word “sex” is, from a textualist perspective, irrelevant to the issue in Bostock.

Hospitality At The Center Of Dispute Resolution, Peter Block

Cardozo Journal of Conflict Resolution

My intent here is to amplify and give voice to the transformative importance of the work described in three of the Articles being published in this edition of the Cardozo Journal of Conflict Resolution. The Articles discuss restorative answers to this culture's dominant narrative of retribution. Each of these social innovations represents a form of hospitality, which is akin to the welcoming of strangers. The Articles form a strategy, in alliance with the alternative dispute resolution movement and addressing the violence against the self and others, which forms the headlines of our daily news consumption.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

"Grievously And Egregiously Wrong": American Abortion Jurisprudence, Alyson M. Cox, O. Carter Snead

Journal Articles

This paper considers American abortion jurisprudence in the light of the Supreme Court's grant of certiorari in Dobbs v. Jackson Women's Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made …

Unresponsive Judicial Review: How Formalism On The American Bench Thwarts Democracy Defense, Andrea Scoseria Katz

Scholarship@WashULaw

At a time when worldwide democratic decline is of grave concern, Rosalind Dixon’s Responsive Judicial Review is vital and timely. Dixon sketches an attractive vision of courts’ highest role as one of democracy-defense: protecting free and fair elections, ensuring rights and freedoms remain in vigor, muscularly enforcing checks and balances. Granted, argues Dixon, “responsive” courts must exercise their powers in a context-sensitive way; courts in fraught environments cannot get away with quite as much entrepreneurial judging as their counterparts, and they should tailor a remedy to ensure, one, its own feasibility, and two, the court’s survival. The pragmatic character of …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo

Touro Law Review

Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Prosecuting The Phone Scammer When Extradition Fails And Concurrent Jurisdiction Exists, Michelle Lepkofker

Brooklyn Journal of International Law

Advancements in technology allow people to place phone calls half a world away via the internet. This technology has made it easier and cheaper for consumers to communicate, but it has also made it easier for scammers to reach more unsuspecting victims. In 2020, TrueCaller, an app designed to block scam phone calls, successfully blocked, and identified 31.3 billion spam calls in 20 countries. In the same year, Americans alone lost a total of USD $ 29.8 billion to scam calls. This Note argues that phone scams continue to be lucrative, in part, because criminal prosecutions of transnational crimes are …

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

University of Cincinnati Law Review

No abstract provided.

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 have criticized the Burger …

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 …

Transforming Affirmative Action Jurisprudence: Applying Eidelson's Theory On The Supreme Court Of India, Sawinder Singh

Cardozo International & Comparative Law Review

This paper compares the affirmative action jurisprudence developed by the Indian Supreme Court with United States affirmative action jurisprudence in the context of the philosophy of equality developed by Harvard Law School Professor Benjamin Eidelson. It evaluates the potential of Eidelson's claim that if the U.S. Supreme Court accepts his philosophy, it may incrementally allow the Court to adopt a more favorable attitude towards the affirmative action policies. The question raised here is whether Eidelson's approach can provide a constitutionalfoundation capable of giving us a consistently benevolent interpretation of affirmative action policies, as he hoped. This article concludes that, at …

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 …

Brief For Professors Mary Ann Glendon And O. Carter Snead As Amici Curiae In Support Of Petitioners, Heather Gebelin Hacker, O. Carter Snead

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 Summary of Argument

Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks gestational development (with exceptions for medical emergency or fetal abnormality) is quite modest in impact, more permissive than the vast majority of the laws on abortion around the world (including in all but three European nations), and appears to be broadly popular. But it seems to clearly violate the Supreme Court-made law of abortion, which forbids the State from …

Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano

Indiana Law Journal

Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …