Jurisprudence Commons^™

The Faith And Morals Of Justic Antonin Scalia, David F. Forte

Intercultural Human Rights Law Review

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Of Hats And Robes: Judicial Review Of Nonadjudicative Article Iii Functions, Jeffrey L. Rensberger

University of Richmond Law Review

We are accustomed to thinking of Article III courts and judges deciding cases and controversies. But, federal judges and courts have historically also engaged in official but nonadjudicative activities. In addition to a history of federal judges serving on nonjudicial commissions, federal judges and the Supreme Court participate in the rulemaking process for the federal procedural and evidentiary rules. Although some argue to the contrary, the Supreme Court has approved such arrangements in the face of separation of powers objections. Since Article III officers and courts perform nonadjudicative duties, the question arises of how federal courts who address a challenge …

The Post-Alice Jurisprudence Pendulum And Its Effects On Patent Eligible Subject Matter, John Robert Sepúlveda

Touro Law Review

No abstract provided.

All Balls And No Strikes: The Roberts Court’S Anti-Worker Activism, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.

In 2012, I traced how the Roberts Court paid scant attention to the integral role …

Aedpa As Forum Allocation: The Textual And Structural Case For Overruling Williams V. Taylor, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Williams v. Taylor, the Supreme Court read a section of the Anti- Terrorism and Effective Death Penalty Act (AEDPA) to change the long-prevailing de novo standard of review of federal habeas petitions by state prisoners. In holding that Congress had denied the lower federal courts the power to grant habeas relief to prisoners in custody pursuant to wrong but reasonable state court decisions, the Court departed from the provision’s text and relied instead on its perception of a generalized congressional purpose to cut back on habeas relief and on the non-redundancy canon of statutory construction. On both scores, …

Falsity And The First Amendment, G. Edward White

SMU Law Review

This Article considers the extent to which the exclusion of forms of speech from the coverage of the First Amendment has turned on the falsity of statements within the excluded categories. It does so, first, by reviewing the Supreme Court’s early and mid-twentieth century free speech decisions, to demonstrate that none of the principal cases in which the Court swept a particular category of expression within the First Amendment’s coverage involved speech that was false; and, second, by suggesting that when the Court first announced that some “breathing space” was required for factually inaccurate statements about public officials or private …

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current …

Obscured Boundaries: Dimaya's Expansion Of The Void-For-Vagueness Doctrine, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Revisiting Roe To Advance Reproductive Justice For Childbearing Women, Elizabeth Kukura

Notre Dame Law Review Reflection

The rewritten opinions that comprise Feminist Judgments together provide a powerful critique of judicial decisionmaking that renders certain women’s experiences invisible. By reimagining key Supreme Court decisions, the opinion writers unmask various ways that gendered conceptions of social roles are deeply entrenched in the rulings and reasoning of the highest court of the United States. The authors also show, through their alternative texts, that opinions which are celebrated as women’s rights victories can nevertheless impede progress toward equality and liberty.

Kimberly Mutcherson’s rewritten concurrence in Roe v. Wade illustrates the missed opportunities and unintended consequences that have made the landmark …

The Love In Loving: Overcoming Artificial Racial Barriers, Justice Leah Ward Sears (Ret.), Sasha N. Greenberg

Notre Dame Law Review Reflection

The rewritten opinion of Loving v. Virginia in Feminist Judgments: Rewritten Opinions of the United States Supreme Court is in stark contrast to the original. Professor Teri McMurtry-Chubb’s judgment for the court “unmasks—and renders unavoidable— the link between America’s history of White supremacy and patriarchy and America’s legal structures for regulating marriage and families.” The feminist opinion relies almost entirely on legal, social, and cultural history, in particular the history of marriage and family relationships among and between Blacks and Whites during the colonial, antebellum, and postbellum eras in the American South.

For the authors of this response Essay, both …

Looking To The Litigant: Reaction Essay To Feminist Judgments: Rewritten Opinions Of The United States Supreme Court, Claire B. Wofford

Notre Dame Law Review Reflection

Feminist Judgments’s focus on jurists alone is not unusual. My own discipline has devoted a great deal of study to understanding why and how the justices of the U.S. Supreme Court make the decisions they do. Some of the scholarship has even examined whether women judges might operate differently than their male counterparts, though the findings have been mixed at best. The emphasis, moreover, is understandable and laudable, as it is jurists who have the final say on the content of law.

Emphasizing judicial behavior, however, unfortunately overlooks the fundamental passivity of the courts. As much as they might …

Feminist Judgments And The Future Of Reproductive Justice, Sarah Weddington

Notre Dame Law Review Reflection

Roe v. Wade is one of the twenty-five Supreme Court cases that has been rewritten from a feminist perspective by an imaginative group of law professors and lawyers. This Essay is based on remarks made by Ms. Weddington at a panel discussion held at Temple University Beasley School of Law on November 13, 2017.

Extending The Critical Rereading Project, Gabrielle Appleby, Rosalind Dixon

Notre Dame Law Review Reflection

In this reflection, we want to explain a project in Australia that extends the feminist judgments project and adapts it specifically for the purpose of teaching critical theory, critical legal thinking, and the assumptions inherent in the legal method.

Rewriting Judicial Opinions And The Feminist Scholarly Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Notre Dame Law Review Reflection

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O’Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

Feminist Judgments And Women's Rights At Work, Gillian Thomas

Notre Dame Law Review Reflection

The history of the law’s treatment of working women is largely a history of the law’s treatment of women’s bodies. Overwhelmingly created by male judges, that jurisprudence considers women from a remove—their physicality, their reproductive capacity, their stature, their sexuality—eclipsing meaningful consideration of their lived experience, on or off the job. As vividly illustrated by so many of the alternative rulings contained in Feminist Judgments, that erasure resulted in Supreme Court decisions that—even when they came out the “right” way, that is, in favor of the female litigant—squandered opportunities for advancing sex equality.

The tantalizing notion of “what might …

Feminist Judgments And The Rewritten Price Waterhouse, Sandra Sperino

Notre Dame Law Review Reflection

In Feminist Judgments, Professor Martha Chamallas reimagines the canonical case of Price Waterhouse v. Hopkins. In that case, the Supreme Court recognized that a plaintiff can prevail on a Title VII claim by showing that a protected trait was a motivating factor in a negative employment outcome. In that case, the Court noted that plaintiffs in discrimination cases should not be required to prove but-for cause to prevail.

The introduction to the Professor Chamallas concurrence correctly notes many of the rewritten opinion’s strengths. Professor Chamallas provides richer detail about the facts underlying the case and the context in …

Feminist Judgments & #Metoo, Margaret E. Johnson

Notre Dame Law Review Reflection

The Feminist Judgments book series and the #MeToo movement share the feminist method of narrative. Feminist Judgments is a scholarly project of rewriting judicial opinions using feminist legal theory. #MeToo is a narrative movement by people, primarily women, telling their stories of sexual harassment or assault. Both Feminist Judgments and #MeToo bring to the surface stories that have been silenced, untold, or overlooked. These narrative collections can and do effectuate genderjustice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Notre Dame Law Review Reflection

Feminist Judgments takes us to a key moment in the history of sexual harassment law. In Meritor Savings Bank v. Vinson, the Supreme Court recognized for the first time that both quid pro quo and hostile environment sexual harassment violate Title VII of the Civil Rights Act of 1964. It also held that to be actionable under Title VII, sexual advances must be (1) “unwelcome” and (2) “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The latter part of the test (“sufficiently severe or pervasive”) fits well into the …

The Uncertain Status Of The Manifest Disregard Standard One Decade After Hall Street, Stuart M. Boyarsky

Dickinson Law Review (2017-Present)

The Federal Arbitration Act (FAA) enables parties to obtain quick and final resolution to disputes without incurring the costs, delays, and occasional publicity of litigation. Indeed, section 10 of the FAA enumerates four specific grounds on which courts may vacate arbitral awards: corruption, fraud, impartiality, and misconduct or incompetence. Yet over the past 60 years, a debate has raged over the existence of an additional ground: the arbitrator’s manifest disregard of the law.

The Supreme Court first enounced this standard in dicta in its 1953 decision in Wilko v. Swan. Over next four decades, every federal circuit court slowly …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Essay: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading, Jonathan D. Glater

Brooklyn Law Review

The Supreme Court’s insider trading doctrine has become increasingly convoluted as each effort to cope with novel fact patterns results in a new rule not tethered to principled understanding of the nature of the wrong committed. That this is not a terribly controversial claim is evidence of how far the Court’s jurisprudence has drifted. This essay proposes that the early error was abandonment of concern for third parties who trade on exchanges but who do not enjoy legal access to information possessed by insiders or tippees who receive information from insiders. The Court’s error, the essay contends, rests on a …

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Michigan Law Review

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were victims …

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …

Legal Innocence And Federal Habeas, Leah Litman

Articles

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …