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What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Discriminatory Intent Claims Under Section 2 Of The Voting Rights Act, Amandeep S. Grewal

Fordham Law Voting Rights and Democracy Forum

This Article addresses a new controversy over whether Section 2 of the Voting Rights Act prohibits laws that exhibit “only” discriminatory intent, in the absence of discriminatory results. Lower courts have long embraced an intent approach for Section 2. And the Department of Justice has rested its entire ongoing case against Georgia’s controversial voting bill on an intent approach.

However, this Article shows that the Supreme Court’s decision in Brnovich v. DNC effectively rejects the intent approach to Section 2. In April 2023, the Eleventh Circuit reversed its prior cases and now rejects an intent theory. This puts in peril …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Flourishing, Virtue, And The Common Good Constitutionalism, Lawrence B. Solum

Faculty Scholarship

In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, but very little to say about the substantive component of his conception, which he describes as “happiness or flourishing.” This Article articulates a conception of the common good that is grounded in a virtue-centered conception of human flourishing. Humans are rational and social creatures, and therefore, flourishing for humans consists in rational and social activities that express the human excellence or virtues. The common good requires communities that facilitate human flourishing in three ways: (1) by creating …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Federal Data Privacy Regulation: Do Not Expect An American Gdpr, Matt Buckley

DePaul Business & Commercial Law Journal

No abstract provided.

Legal Representation And The Metaverse: The Ethics Of Practicing In Multiple Realities, Madeline Brom

DePaul Business & Commercial Law Journal

No abstract provided.

Badges Of Honor: Professional Conduct, Consumer Protection, And Accolades In Lawyer Advertising, Kiren Dosanjh Zucker, Bruce Zucker

DePaul Business & Commercial Law Journal

No abstract provided.

Ethics At The Speed Of Business, James A. Doppke Jr.

DePaul Business & Commercial Law Journal

This paper discusses several ways in which the Illinois Rules of Professional Conduct, and the Illinois Supreme Court Rules, construct barriers that prevent lawyers and businesses from accomplishing reasonable commercial goals. Often, those barriers arise from outdated concepts, or terminology that does not reflect current business realities. The paper argues for the amendment of specific Rules to enhance lawyers’ and businesses’ respective abilities to conduct their affairs more efficiently, without sacrificing public protection in the process.

Welcome Address, Lauren Mckenzie

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Confirm Julie Rikelman For The First Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate has reconvened after pauses for holidays, the upper chamber must expeditiously appoint designee Julie Rikelman to the U.S. Court of Appeals for the First Circuit, which is the smallest, albeit critical, appellate court. The nominee, whom President Joe Biden tapped during late July 2022, would supply remarkable experiential, gender, and ideological diversity gleaned from pursuing much cutting-edge reproductive freedom litigation, which included arguing Dobbs before the Supreme Court that overturned Roe v. Wade. The nominee has definitely excelled in law’s highest echelon over twenty-plus years, most recently as the U.S. Litigation Director in the …

Confirm Rachel Bloomekatz To The Sixth Circuit, Carl Tobias

University of Richmond Law Review

Now that the United States Senate is convening after the July Fourth holiday, the upper chamber must promptly appoint Rachel Bloomekatz to the U.S. Court of Appeals for the Sixth Circuit. The nominee, whom President Joe Biden selected in May 2022, provides remarkable experiential, gender, and ideological expertise that she deftly realized in litigating high-profile gun control, environmental, and other significant cases in federal appellate courts and district courts. Over fifteen years, the nominee has reached law’s pantheon across a broad spectrum from extremely prestigious clerkships with Justice Stephen Breyer and particularly distinguished federal court and state court jurists to …

Change We Can Believe In: The Seventh Circuit's Exposure Of Inadequate Environmental Review In Protect Our Parks V. Buttigieg, P. Nicholas Greco

Villanova Environmental Law Journal (1991 - )

No abstract provided.

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Acting Cabinet Secretaries And The Twenty-Fifth Amendment, James A. Heilpern

University of Richmond Law Review

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries—Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin—tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the …

Going The Extra Mile: Expanding The Promoting Affordable Housing Near Transit Act, Emily R. Casey

University of Richmond Law Review

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban …

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

Acknowledgements, Matthew L. Brock

University of Richmond Law Review

Each year, in a tradition dating back twenty-three years to Volume 33, the Editor-in-Chief of the University of Richmond Law Review authors acknowledgements to be included in their volume’s final publication. In keeping with tradition, I offer below my gratitude to those who have contributed to this publication and to the overall success of the Law Review, and reflect upon the fifty-seventh volume of our journal.

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

Enhancing Rural Representation Through Electoral System Diversity, Henry L. Chambers Jr.

University of Richmond Law Review

Rural Virginians face disparities in outcomes regarding healthcare, access to important infrastructure, and other services. Some disparities may be related to rurality. The sparseness of population in rural areas may limit the sites where people may access services, triggering the need to travel significant distances to obtain goods and services in such areas. Limited access may lead to disparities even when the quality of goods and services in rural areas is high. The disparities affect all rural Virginians, but disproportionately affect rural Virginians of color. The causes of the disparities are complex and myriad, and may be based on race, …

Rural Bashing, Kaceylee Klein, Lisa R. Pruitt

University of Richmond Law Review

Anti-rural sentiment is expressed in the United States in three major threads. The first is a narrative about the political structure of our representative democracy—an assertion that rural people are over-represented thanks to the structural features of the U.S. Senate and the Electoral College. Because rural residents are less than a fifth of the U.S. population, complaints about this situation are often framed as “minority rule.”

The second thread is related to the first: rural people and their communities get more than their fair share from federal government coffers. The argument, often expressed in terms of “subsidies,” is that rural …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

Faculty Scholarship

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Rucho In The States: Districting Cases And The Nature Of State Judicial Power, Chad M. Oldfather

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.

This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …