Supreme Court of the United States Commons^™

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Pleading Conditions Of The Mind Under Rule 9(B): Repairing The Damage Wrought By Iqbal, A. Benjamin Spencer

Faculty Publications

In 2009, the Supreme Court decided Ashcroft v. Iqbal, in which it pronounced-among other things- that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure-which permits allegations of malice, intent, knowledge, and other conditions of the mind to be alleged "generally" -requires adherence to the plausibility pleading· standard it had devised for Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. That is, to plead such allegations sufficiently, one must offer sufficient facts to render the condition-of-the-mind allegation plausible. This rewriting of the standard imposed by Rule 9(b)'s second sentence-which came only veritable moments after the Court …

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Faculty Publications

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was intended to breathe new life into the ADA after the courts, especially the Supreme Court, drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA.

This abstract has been taken from the …

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas

William & Mary Law Review

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Section 2: Trump And The Court, Institute Of Bill Of Rights Law, William & Mary Law School

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2018-2019 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

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2018-2019 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 3: Property Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 5: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law, William & Mary Law School

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Section 6: Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School

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Judge Kavanaugh And Freedom Of Expression, Timothy Zick

Popular Media

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The Federalist Society Majority, Lawrence Baum, Neal Devins

Popular Media

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Justice Kennedy’S Controversial Judicial Philosophy, Described By A Former Clerk, Nancy Amoury Combs

Popular Media

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Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez …

Auer Evasions, Jonathan H. Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force …

Section 2: Trump And The Court, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 3: Business Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 6: Election Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 4: Immigration Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

2017-2018 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

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Section 5: Criminal Law Panel, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

2017-2018 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School

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No abstract provided.

John Marshall, The Great Chief Justice, William & Mary Law School

Popular Media

John Marshall, the nation's fourth chief justice, was among the first to study law at W&M.

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.

Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler

Faculty Publications

Business and the Roberts Court was an effort to get beyond pure quantitative analysis and unpack the ways in which the Roberts Court is—and is not—pro-business. Among other things, the book highlighted how exogenous factors, including the increased specialization of the Supreme Court bar and broader political trends, have influenced the Supreme Court’s approach to business issues. The collected essays also unpacked the Court’s handling of specific types of cases in an effort to understand why it has ruled the way it does.

Business and the Roberts Court was not the last word on the Roberts Court’s approach to business …