Law and Philosophy Commons^™

Obstructing Precedent, Bill Watson

Northwestern University Law Review

Critics of the Supreme Court sometimes accuse the Justices of disrespecting or being unfaithful to precedent—of undermining certain precedents while leaving them formally in place. Yet it remains unclear what exactly these criticisms mean or why they point to anything objectionable. This Article proposes that critics are often drawing attention to a particular practice: obstructing precedent. A better grasp of what obstructing precedent is and when it is legitimate is important to understanding the Roberts Court’s treatment of precedent in a range of cases.

A court obstructs precedent when it refuses to cooperate with its prior self in building a …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

The Rhetoric Of Abortion In Amicus Briefs, Jamie Abrams, Amanda Potts

Scholarly Articles in Law Reviews & Journals

The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

Scholarly Works

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

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

Scholarly Works

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, …

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

November 5, 2020: Count All The Pennsylvania Ballots--Conservative Justices Are Seeing The Ghost Of Bush V. Gore, Bruce Ledewitz

Hallowed Secularism

Blog post, “Count All the Pennsylvania Ballots--Conservative Justices Are Seeing the Ghost of Bush v. Gore“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 27, 2020: Will The Supreme Court Survive This Treachery?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Will the Supreme Court Survive This Treachery?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 5, 2020: Preparing The Ground To Overrule Roe?+A5, Bruce Ledewitz

Hallowed Secularism

Blog post, “Preparing the Ground to Overrule Roe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

February 26, 2020: The Crisis Over Recusal, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Crisis Over Recusal“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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.

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.

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.

May 15, 2019: What Impeachment And Court-Packing Have In Common, Bruce Ledewitz

Hallowed Secularism

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

April 14, 2019: Two Cases Of Independence--The Court And The Fed--And What They Tell Us About American Nihilism, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Two Cases of Independence--the Court and the Fed--and What They Tell Us About American Nihilism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 17, 2019: The Response To My Anti-Court-Packing Message, Bruce Ledewitz

Hallowed Secularism

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

February 23, 2019: Opening Of The Memphis Talk On Court-Packing, Bruce Ledewitz

Hallowed Secularism

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

March 21, 2019: My Op-Ed On The Bladesnburg Cross, Bruce Ledewitz

Hallowed Secularism

Blog post, “ My op-ed on the Bladesnburg Cross“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 18, 2018: The Continuing Disintegration Of Politics In America, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Continuing Disintegration of Politics in America“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 3, 2018: Judge Kavanaugh Doesn’T Have A Judicial Philosophy: Only Randy Barnett Does, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judge Kavanaugh Doesn’t Have a Judicial Philosophy: Only Randy Barnett Does“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 18, 2018: The Kavanaugh Story, Bruce Ledewitz

Hallowed Secularism

Blog post, “ The Kavanaugh Story“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 24, 2018: The Coming Desperate Struggle, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Coming Desperate Struggle“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 15, 2018: The Catholic Church Child Abuse Scandal Comes Out, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Catholic Church Child Abuse Scandal Comes Out“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 1, 2018: Can We Agree That Not Everything Unions Do Is Speech, Bruce Ledewitz

Hallowed Secularism

Blog post, “Can We Agree that not Everything Unions Do is Speech“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.