Supreme Court of the United States Commons^™

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Understanding Dobbs V. Jackson Women's Health Organization: How The Modern Supreme Court Broke From Tradition And Changed The Original Meaning Of Due Process, Matthew W. Lunder

William & Mary Bill of Rights Journal

What follows here describes and criticizes the modern liberal and conservative approaches to substantive due process. Part I shows how substantive due process came about in the mid-twentieth century as the union of two extant doctrines: incorporation and fundamental rights. Part II then describes how modern conservatism used the doctrine to arrive at the deeply rooted-in-history-and-tradition test and shows the deliberate reconfiguration of the jurisprudence during the latter twentieth century into the novel patchwork of the modern-conservative method applied in Dobbs. Part III offers a contrast, describing and explaining the traditional due-process analysis of medieval origin and the concept of …

The (Quorum) Call Is Coming From Inside The House: Incongruity Between The Current Interpretation Of The Quorum Clause And The Supreme Court’S First Congress Canon, Sam Mahler

Connecticut Law Review

Since the start of the twenty-first century, Congress members have faced more threats to their safety than at any other point in American history. Up to this point, none of the attacks have been successful in killing a majority of the members. However, such a prospect comes with the possibility of a reality where all Congressional action is stalled until replacement elections are held and new members are seated. In order to address this fear, Congress has changed its interpretation of the Quorum Clause to define the majority needed to conduct business as the majority of the members who are …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

Misusing Eminent Domain: Pretextual Takings For A Traditional Public Use, Cameron P. Hellerman

Fordham Law Review

Eminent domain is a powerful tool at the disposal of local, state and federal governments. The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power: the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner. There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts. The U.S. Supreme Court equates “public use” with “public purpose” and applies a deferential standard of review to a condemner’s determination that a taking serves a public purpose. Nonetheless, the Court in Kelo v. City …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

Originalism’S Precedent Problem, James Bernstein

Northern Illinois University Law Review

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning …

Courting Oblivion Part Ii: How To Revive American Reconstruction By Feigning Forgetfulness, Joshua J. Schroeder

Cleveland State Law Review

This is the second part of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness usually to predicate a second chance, a restart, or even an era of reconstruction. This Article demonstrates how to apply the “right to move on” described in Part I to the law in the United States through acts of oblivion and amnesty. It describes the general uses of acts of oblivion and amnesty to the general framework of government in the United States, leading to the final discussion in Part III about the …

Hoodwinked By Rucho: The Illusion Of Protection For Racial Gerrymandering In Federal Courts, Krystell Fienco

University of Miami Race & Social Justice Law Review

"lt is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." - Marbury v. Madison, 5 U.S. 137 (1803).

"[W]e must never forget, that it is a constitution we are expounding." - McCulloch v. Maryland, 17 U.S. 316 (1819).

The Right To Gender-Affirming Care, Justin J. Soulas

Theses and Dissertations

As of recent, twenty-four states have enacted bans on gender-affirming care, restricting minors from accessing medically necessary treatment. Existing scholarship has begun to explore the profound impact of these bans on transgender youth, their parents or guardians, and the medical professionals who support them. However, the body of literature on this rapidly evolving issue remains limited. This thesis aims to fill that gap by offering a legal defense of gender-affirming care, grounded in judicial precedent. It argues that parental rights to make medical decisions for their children—recognized in constitutional jurisprudence—extend to decisions involving gender-affirming treatment. Additionally, it draws on anti-discrimination …

Amgen Enablement And Its Undue Burden On An Overburdened Biomedical Industry, Carter Chippi

Journal of Law and Health

This paper examines the Supreme Court decision in Amgen Inc. v. Sanofi and its profound impact on the patentability of biotechnology inventions, particularly biologic drugs. By virtually eliminating the possibility of claiming genera patents, the decision exacerbates existing challenges within the biologic sector, including high development costs and rigorous regulatory hurdles. The analysis sets forth the enablement requirement’s precedent, emphasizing historical case law and the unforeseen implications of setting a stringent standard for biotechnology patents. This paper further critiques suggested industry compromises, deeming them insufficient to address the ramifications of Amgen, and proposes legislative intervention. Options include granting biologics …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

The Final Frontier Of Federal Power: Understanding, Defining, And Enforcing “Necessary And Proper” To Enhance The General Welfare And Limit Federal Power, Thomas Ralph

Catholic University Law Review

This comment explores the long and inconsistent history of the Necessary and Proper Clause and its unique role as both a grant of power to Congress and a limit on the outer reach of the federal government. The federal government is in theory one of limited powers; however, this promise of the Constitution cannot be truly recognized without developing a robust framework for applying the Necessary and Proper Clause as a reliable source of federal power. After establishing the need for a framework, this comment provides five judicial decision rules that can be applied by trial and appellate courts to …