Supreme Court of the United States Commons^™

Deemed Acceptance, Not Deemed Consent: Nonvoting Stakeholders And A Uniform Conspicuousness Standard For Opt-Out Third-Party Releases, Zach Cavagnaro

Student Scholarship

After Harrington v. Purdue Pharma, the fight over third-party opt-out releases has shifted from whether consent is necessary to what consent means. The Supreme Court held that the Bankruptcy Code does not authorize non-consensual nondebtor releases outside 11 U.S.C § 524(g), and—critically—left out what exactly counts as consent. The fight over consent is expected to command a lot of litigation, so a simple, uniform conspicuousness standard for nonvoting stakeholders’ opt-out releases can help alleviate litigation costs and focus on the definition of consent. This Comment argues that courts should evaluate consent through a unified, contract-law-grounded conspicuousness standard calibrated to the …

Aggregation And The “Universal” Injunction, Portia Pedro, Adam N. Steinman

Faculty Scholarship

In this Essay, we begin with a brief summary of the CASA decision’s holding regarding the availability of “universal” injunctions. Part II discusses the relationship between remedies and judicial review and the important role that such injunctions play in that regard. Part III explores how class actions could serve as an alternative path for federal courts, after engaging in judicial review, to make their decisions meaningful by requiring officials to comply with the law and to cease illegal actions or policies. We also respond to several objections to the use of class actions in this context. The final Part addresses …

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Making The Party Presentation Principle Safe For Originalism, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

The Supreme Court sometimes adheres to what it calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.

For originalists, the importance of …

Communicative Administration: The Administrative State Beyond Legal Administration, Daniel E. Walters

Faculty Scholarship

On many dimensions, the administrative state is at the nadir of its power. The Supreme Court has tightened administrative law controls on agency power, and the Trump Administration has stormed the bureaucracy in an unprecedented blitz designed to kneecap agency capacity and independence. For better or worse, many agencies and their civil servants are being sidelined as meaningful actors in the administration of government. Yet this familiar account doesn’t tell the entire story. At the same time that agencies are being stripped of the power to implement law—what this Article calls “legal administration”— they are steadily accumulating extensive and largely …

Nonparty Claim Preclusion, Mark D. Rosen

Texas A&M Law Review

For nearly two centuries, American courts recited that the preclusive effects of a court’s final judgment were subject to a requirement of “mutuality,” meaning that a party in Lawsuit 2 who would not be bound by a judgment from a prior Lawsuit 1 could not benefit in Lawsuit 2 from the first lawsuit’s judgment either. While the Supreme Court eliminated the mutuality requirement for issue preclusion in the 1970s—paving the way for “nonmutual collateral estoppel”—to this date, the Court has not decided if mutuality remains a requirement for claim preclusion. Although many courts today insist there is no such thing …

Rahimi's Goldilocks Dilemma: Finding The "Just Right" Age Of Tradition, James M. Handwerk

Texas A&M Law Review

Although its edges are obscured with unresolved tension, the Supreme Court’s recent sortie into Second Amendment interpretation sparked a new era of historical scrutiny. Some question whether the various difficulties present in the new framework render the doctrine unworkable. Rahimi’s Goldilocks Dilemma examines the interpretive obstacles posed by the text, history, and tradition framework, which was brought to light in New York State Pistol & Rifle Ass’n v. Bruen and United States v. Rahimi. Particularly, this Comment focuses on the role that pre-ratification history plays in finding “relevant” historical analogs. Pre-ratification history, as defined by this Comment, includes …

Fifty Ways To Leave Your Lover: Using State Constitutions To Escape The Dead Hand Of Article V, Meg Penrose

Faculty Scholarship

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

Hester's Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Texas A&M Law Review

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its impact has steadily expanded, with the result that, by some estimates, the government can now engage in warrantless surveillance of some 96% of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings …

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

Local Government Standing As State Standing, Katharine Cooney, Katherine Mims Crocker

Faculty Scholarship

It is increasingly common, and controversial, for local governments to bring lawsuits as plaintiffs in federal court. Many questions about this practice raise matters that sound in policy. But some, including the issue of standing to sue, also raise issues of constitutional law. How local governments fit into standing rules should reflect how they fit into the U.S. constitutional system more broadly. As the Supreme Court put it in the famous (and infamous) 1907 case Hunter v. City of Pittsburgh, "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of …

Thermtron: The Unsexy Case The Current Court Should Overturn (Statutory Stare Decisis Be Damned), Christine Tamer

Texas A&M Law Review

Since 1887, Congress has created an impenetrable dike wall to stop appellate review of remand orders in 28 U.S.C. § 1447(d), which provides: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” Then, in 1976, the Supreme Court held “that § 1447(d) does not mean what it says” and, thereby, punctured not a tiny hole, but a big one in Congress’s dike wall that had been impenetrable for nearly 90 years. While you won’t find Thermtron—an unsexy jurisdictional case—on any list of the …

Discerning Interstate Groundwater Law: An Evaluation Of Federal Common Law And Its Impacts On Groundwater Management, Brooke Collishaw

Texas A&M Law Review

The Supreme Court has demonstrated a superficial understanding of ground water over the last century in interstate water disputes. In cases that indirectly affect groundwater, it has ignored the complexities of the resource and its connection with surface water. All but one Supreme Court case that mentions groundwater centers around surface water, leading to the inadequate consideration of groundwater. This has led to the development of a unique federal common law for how federal courts are to resolve interstate water disputes that affect groundwater. While the Court has applied the law consistently, gaps exist. Given the growing reliance on cross-border …

Chimeric Contacts And Consent: The Ill-Reasoned Expansion Of Corporate Jurisdictional Exposure, James Paul George

Faculty Scholarship

Two recent Supreme Court decisions have imposed aspects of general jurisdiction in a way that exposes corporations and possibly other legal actors to litigation in spuriously connected forums. One case-Ford Motor Company v. Montana-reached a fair result but with strained reasoning that will support unfair results. The second case-Mallory v. Norfolk Southern Railroad Company-was wrong on the facts and the law, imposing general jurisdiction based on a vaguely worded corporate registration statute validated by a more than century-old precedent based on Pennoyer v. Neff's limited territorial model. Both decisions were the result of conceptual corners the Supreme Court has created …

Joinder, Not Jurisdiction: Toward A New Theory Of Standing, Adam N. Steinman

Faculty Scholarship

This Article builds on an important development in the Supreme Court’s standing jurisprudence to propose a novel theory that would allow more meaningful access to federal courts while vindicating legitimate separation-of-powers concerns. In its recent decision in TransUnion LLC v. Ramirez, the Supreme Court endorsed a theory of standing based on Article II, writing that litigation between private parties—even when explicitly authorized by Congress—can run afoul of the executive branch’s interest in “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” This Article II move has been justifiably criticized. But it is …

Original Discontent, William Magnuson

Faculty Scholarship

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …

Rulemaking Petitions In A World Without Deference To Agencies: A New Lease On Life?, Daniel E. Walters

Faculty Scholarship

Often overlooked in the study and practice of administrative law, rulemaking petitions are means by which interested persons can prompt federal agencies to implement the statutes they administer in particular ways. After the Supreme Court’s 2024 decisions in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), and Ohio v. Environmental Protection Agency, 144 S. Ct. 2040 (2024), rulemaking petitions are about to experience a renaissance—one that could reshape environmental law, should environmental advocates choose to leverage the procedure.

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres

Faculty Scholarship

This article examines Moral Politics Theory (MPT) as a way to understand current tensions in the US concerning reproductive justice. MPT, as developed and researched for over thirty years by cognitive scientist, George Lakoff, provides a way to explain differences in political worldviews. According to Lakoff’s research in Moral Politics and Don’t Think of an Elephant!, conservatives tend to hold a strict-father model, and progressives hold a nurturant-parent model. People in the political middle tend to endorse both models; Lakoff labels those in the middle as “biconceptuals,” and discusses how this group is most susceptible to persuasion because metaphors frame …

From Race-Conscious To Race-Neutral: The Next Generation Of Litigation Over Selective Admissions, Rachel F. Moran

Faculty Scholarship

In the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form …

Not-So-Special Solicitude, Katherine Mims Crocker

Faculty Scholarship

In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.

But what if “special solicitude” is not so …

Reconceptualizing Property Law's Background Principles In Takings Law, Timothy M. Mulvaney

Faculty Scholarship

Both libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations …

Transforming Fair Use, Glynn Lunney

Faculty Scholarship

In the United States, the fate of fair use, and by extension, copyright itself, hang in the balance. In recent years, courts have disagreed over fair use’s proper scope. On the one side are appellate decisions that interpret fair use broadly. While these decisions do not go so far as to suggest that every reuse is fair, they typically use the talismanic phrase “transformative use” and give it a generous and flexible interpretation. On the other side are appellate decisions that interpret fair use restrictively. While again they do not go so far as to suggest no reuse is fair, …

Section 1: Defining Arbitration And Addressing Structural Bias, Nancy A. Welsh

Faculty Scholarship

The Supreme Court’s jurisprudence pursuant to the Federal Arbitration Act (FAA) has successfully encouraged the use of arbitration to resolve disputes of all types, including those arising out of contracts of adhesion. Meanwhile, with one very limited exception, neither Congress nor the Supreme Court has done anything to assure those bound by adhesive contracts that the required arbitration process will be fair, impartial, and consistent with due process principles. The FAA does not even include a definition of arbitration to guide arbitration providers and individual arbitrators. This chapter proposes the addition of a definition of arbitration to the FAA to …

Statutory Religious Accommodation In Employment And The Problems Of Judicial Intent And Outcome, George Wright

Texas A&M Law Review

The Groff v. DeJoy case unhappily, but inevitably, generates a variety of realistically unresolvable fundamental problems in typical statutory religious accommodation cases. Perhaps even more important, though, are the unintended and perverse results of Groff’s placing a generally heavier burden of religious accommodation on employers. The Groff standard indeed incentivizes the bringing of more religious discrimination cases, and both the winning and losing of such cases by religious claimants. But our adversarial cultural circumstances, including the typical inseparability of religion, politics, and culture, crucially affect the actual, but unintended, results of judicial reforms. The Groff rule is likely to …

Law, Fact, And Appellate Review, Adam N. Steinman

Faculty Scholarship

For centuries, courts have been called upon to distinguish between law and fact. That distinction played a key role in recent Supreme Court decisions on two critical components of appellate review. Dupree v. Younger considered an important question regarding what a party must do at trial to preserve an issue for appellate review. And Google LLC v. Oracle America, Inc. addressed how to select and apply the standard of appellate review--specifically, whether and how the appellate court must show deference to particular decisions made at the trial level.
Both decisions were partially right. Dupree correctly focused on whether certain early …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

A New Era Of Deference: From Chevron To Loper Bright, Daniel E. Walters

Faculty Scholarship

Deference to administrative agencies’ interpretations of ambiguous statutory provisions has been a hallmark of administrative law and regulatory policy for the past forty years. The Supreme Court recently upended that settled allocation of power between agencies and courts, granting interpretive primacy to courts even where statutes essentially require policy choices. However, questions remain about precisely how courts will exercise this policymaking authority that agencies used to exercise, as well as about the multiple “offramps” from this nondeferential standard that the Court left open. Rather than a new era of nondeference, it is just as likely we are embarking on a …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …