Supreme Court of the United States Commons^™

Unfriending The Kids: The Problematic Race To Childproof Social Media, Randolph A. Robinson Ii

Cleveland State Law Review

A growing number of states have recently enacted new laws with the goal of protecting young people from potential harm allegedly caused by social media use. These laws are diverse in their approaches but broadly seek to limit youth access to social media platforms by imposing age verification and parental consent requirements. These laws directly implicate the First Amendment rights of both young users who will no longer be able to access speech or speak on social media platforms as well as adult users who must now submit to age verification to access these quintessential forums for political discourse.

These …

An Era Of Silent Overruling: Lack Of Transparency In The Supreme Court And The Expanding Unworkability Doctrine, Sydney Washburn

Cleveland State Law Review

This Note examines the Supreme Court’s growing practice of “silent overruling," the effective displacement of precedent without explicit acknowledgment, and argues that this phenomenon threatens transparency, stability, and public trust in the judiciary. While the doctrine of stare decisis is intended to promote consistency and predictability, the Court has increasingly relied on the vague and discretionary “unworkability” doctrine to justify departing from precedent without clearly articulating its reasoning. Focusing on the Court’s recent decision in City of Grants Pass v. Johnson, this Note argues that the Court silently overruled Robinson v. California while purporting not to reconsider it. In …

Studying Noncitizens: Immigration, The University, And The First Amendment, Peter Margulies

Cleveland State Law Review

From its campaign against anti-war protesters in World War I to the present, the government has tried to restrict the pure political speech of noncitizens, defined as noncitizens’ expression of views about the structure and policies of the U.S. government and governments of foreign nations. Threats to academic freedom are also a hallmark of government action in this domain. Taking a page from this book, the Trump administration has targeted noncitizen students who participated in campus protests against Israel’s military actions in Gaza after Hamas’s brutal attacks on October 7, 2023.

The Trump administration’s effort has viewpoint discrimination at its …

Hbcus And Disparate Law School Rankings, Michael Conklin

Cleveland State Law Review

This Article measures the difference between perceptions of HBCU (Historically Black Colleges and Universities) law schools and their objective performance. This is conducted by comparing the disparities between each law school’s U.S. News & World Report subjective peer ranking and objective overall ranking. This novel methodology provides valuable insight into the role race plays in legal education and the practice of law. This comes at a critical juncture where issues such as the Supreme Court’s banning of race-conscious admissions, new findings regarding law school mismatch, the racially motivated rankings boycott, and the Trump administration’s aggressive targeting of colleges are all …

The Taxing Ambiguity: Defining "Return" In Bankruptcy Dischargeability Cases, Elizabeth Tsai

Cleveland State Law Review

This Note examines the circuit split over the dischargeability of tax debts tied to late-filed returns, which has led to inconsistent bankruptcy outcomes and inequitable treatment of debtors across jurisdictions. Some courts, adopting the strict “one-day-late” rule, hold that any tax return filed even a single day past its deadline is not a “return” for bankruptcy discharge purposes, permanently barring relief. Others apply a more flexible standard grounded in the Beard test, considering a debtor’s good-faith compliance efforts. This inconsistency contradicts the fresh start principle of bankruptcy law, disproportionately harms low-income debtors, and fails to serve the government’s tax collection …

The Second Amendment, Illegal Aliens, And The Bruen Test: Defending The Constitutionality Of 18 U.S.C. § 922(G)(5), Ian Duncan

Cleveland State Law Review

This Note examines the constitutionality of 18 U.S.C. § 922(g)(5), which prohibits unlawful aliens from possessing firearms, under the Supreme Court’s text-and-history framework announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen and developed further in United States v. Rahimi. In the wake of Bruen, lower courts have fractured over how strictly to demand historical analogues and how to treat longstanding status-based restrictions in § 922, including prohibitions on possession by felons, domestic-violence offenders, and noncitizens. Against that backdrop, this Note argues that § 922(g)(5) is constitutionally sound.

Part I traces the development of Second …

"The Terms And Spirit": Preserving The Purpose Of The Fair Labor Standards Act By Applying The Clear And Convincing Evidence Standard In Flsa Exemption Cases, Bridget Mccourt

Cleveland State Law Review

In 2023, the Fourth Circuit in Carrera v. E.M.D. Sales split from its sister courts by requiring employers to prove by clear and convincing evidence that an employee is exempt from the Fair Labor Standards Act (“FLSA”). The Supreme Court reversed the Fourth Circuit’s decision, resolving the split by holding that the preponderance of the evidence is the correct standard. This Note argues that the Fourth Circuit, despite failing to provide a justification for its heightened standard, was correct because it preserves the terms and spirit of the FLSA. Congress enacted the FLSA as a remedial statute aimed to alleviate …

A Rendezvous With Destiny: The President's Ftc Removals And The Rule Of Law, George Sakkopoulos

Cleveland State Law Review

In March 2025, the President removed two commissioners of the Federal Trade Commission (“FTC”). The removed commissioners called the removals unlawful and challenged them in court, citing the FTC Act’s for-cause removal protection and the Supreme Court’s decision in Humphrey’s. After President Roosevelt removed an FTC commissioner, the Supreme Court in Humphrey’s in 1935 upheld the constitutionality of the FTC Act’s removal limitation based on the FTC being expert, nonpartisan/independent, quasi-judicial, and quasi-legislative. The Court in Seila in 2020 held that the President has “unrestricted removal power” as to the executive branch unless the Humphrey’s exception for “multimember expert …

Unfollowing Censorship: A Policy-Oriented Analysis Of Government Pressure On Social Media Content Management, William C. Morgan

Cleveland State Law Review

The introduction of social media has facilitated communications and connectivity globally. However, in recent years, social media companies have started to adopt content moderation practices that are directly influenced by government pressure to comply with their requests to arrange information. Typically, these newly adopted practices often aim to censor or diminish the exposure of certain views, comments, and/or posts that the U.S. government, through its actors, dislike or find threatening to national security. This paper examines how informal government outreach to indirectly monitor, and control social media companies’ content moderation practices undermine the platforms’ constitutionally protected editorial autonomy. Consequently, this …

Remaking Rulemaking: Lessons From The History Of Federal Rule Of Civil Procedure 54(B), Brad Baranowski, Emery G. Lee Iii

Cleveland State Law Review

This Article uses the lost history of Federal Rule of Civil Procedure 54(b) to provide a framework for rulemaking at the busy intersection of complex litigation and appellate finality. The drafters of the original civil rules spent more time thinking through how to efficiently combine claims and parties in civil actions—a promised benefit of the proposed law-equity merger—than about how combined claims should be dis-assembled. This failure would haunt the original Advisory Committee on Civil Rules for years. Nowhere was this more evident than in the first decades of Rule 54(b)’s existence.

Promulgated in 1938, Rule 54(b) was designed to …

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 …

Amicus Briefs, Retired Senior Military Officers, And The Judiciary: A Unique "Friend Of The Court," In The Constitutional Construct Of Civil And Military Relations, Joshua E. Kastenberg

Cleveland State Law Review

Military organizations, and particular, small groups of retired flag officers (generals and admirals) have increasingly filed amicus briefs to the United States Supreme Court and the federal courts of appeal. Most prominent among these are the “Becton Brief,” a group of largely Vietnam Veterans who were concerned that the Court would end any ability of the higher education system to consider race in admissions. Named after Julius Becton, a retired Army general, Vietnam Veteran, and former FEMA director, the brief’s signatories included General Norman Schwarzkopf and Admiral William Crowe, the former chairman of the joint chiefs of staff. The brief …

Diabetes Behind Bars: Dissecting Diabetic Deliberate Indifference And Delivering Inmates A More Workable Standard Under The Fourth Amendment, Maggie J. Malloy

Cleveland State Law Review

This Note examines the inadequacies of the current Eighth Amendment framework in safeguarding the constitutional rights of diabetic inmates. It contends that the subjective element of the two-pronged Eighth Amendment claim—often used to assess deliberate indifference—leads to unfair and inconsistent outcomes. To address these shortcomings, this Note draws inspiration from the objective analysis employed in Fourth Amendment excessive force claims, specifically referencing the Supreme Court’s decision in Graham v. Connor. This new framework eliminates the subjective element, and instead replaces it with three objective factors courts should consider when evaluating Eighth Amendment violations related to diabetic medical care. Through …

Shadows Of The Crown: The Virtue Of Equilibrium In American Sovereign Immunity, William T. Olmstead

Cleveland State Law Review

Under the doctrine of sovereign immunity, the federal and state governments of the United States cannot be sued or prosecuted unless they voluntarily waive their own impunity. In recent decades, the Supreme Court has expanded the scope of the sovereign immunity of the state governments. This Note argues that such an expansion is a profound and shortsighted mistake. It proposes that the most effective way to balance governmental functionality with civic accountability is to pass and ratify a constitutional amendment that solidifies national sovereign immunity and abolishes state sovereign immunity. It argues that such action is necessary to ensure the …

The Dignitary Harms Of Racism In Public Education: Expanding The Lens Of Brown Beyond Segregation, Kumar Ramanathan, Matthew D. Nelsen

Cleveland State Law Review

Reflecting on the 70th anniversary of Brown v. Board of Education, we reconsider the landmark ruling’s conception of dignitary harm in public education. In its argument against the separate-but-equal standard that undergirded segregated schools in the South, the Supreme Court focused on the psychological harm that segregation imposed on Black children. Building on past critiques, we argue that the Court’s analysis was too narrow: the psychological harm it identified is only one of many forms of dignitary harm that racially marginalized students can face in schools. Importantly, dignitary harms can persist even in integrated schools and classrooms, through practices …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

The Second Amendment’S Domestic Violence Problem: How Rahimi Exposes The Flaws Of Bruen’S Problematic Historical Analogue Test, Conner Greene

Cleveland State Law Review

This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other …

Washington V. Glucksberg’S Original Meaning, Marc Spindelman

Cleveland State Law Review

This Article elaborates and defends Washington v. Glucksberg’s original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.

The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court’s Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. …

Courting Oblivion Part I: How To Predicate An Act Of Oblivion On The Right To Move On, Joshua J. Schroeder

Cleveland State Law Review

This is the opener 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 opens the Courting Oblivion series by demonstrating how blind-deaf concepts of justice are fundamentally ignorant of the rights and powers of oblivion. The series’ second and third parts will explain more about how acts of oblivion can secure governmental legitimacy and why oblivion needs to be enacted for whistleblowers generally.

This Article defines the legal concept of oblivion …

Questioning The Legitimacy Of The Expedited Removal Process – The Tall Task Of Protecting The Constitutional Rights Of One Of America’S Most Marginalized Groups, Jacob J. Bourquin

Cleveland State Law Review

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent …

Public Accommodations And The Right To Refrain From Expressing Oneself, Mark Strasser

Cleveland State Law Review

The United States Supreme Court has been unable to articulate a coherent position when addressing the right of individuals to refrain from expressing themselves. The Court has applied various tests inconsistently—emphasizing principles in some cases, ignoring them in subsequent cases, and then emphasizing them again in later cases as if those principles had always been applied. The Court’s approach is incoherent, offering little guidance to lower courts except to suggest that public accommodations laws may soon be found inconsistent with First Amendment guarantees.

Assessing The Future Of “Offended Observer” Standing In Establishment Clause Cases, Larry J. Obhof

Cleveland State Law Review

This Article looks at the anomaly of “offended observer” standing in Establishment Clause challenges. It calls for greater consistency in the courts’ application of constitutional standing requirements.

Under Article III, Plaintiffs seeking to raise claims in federal court must allege a concrete and particularized injury in fact in order to support federal jurisdiction. Likewise, plaintiffs seeking to challenge a government policy must allege a unique injury that is separate from the interests of the public at large. The notable exception is where plaintiffs claim personal offense at alleged government entanglement in religion. These “offended observers” are frequently given access to …

Filling The Potholes Of Pretextual Traffic Stops: A Better Road Forward For Ohio, Jordan Weeks

Cleveland State Law Review

The Fourth Amendment was one of the driving forces behind the United States Revolution. This Amendment generally protects individuals against “unreasonable” searches and seizures. But what does “reasonable” mean in the context of a traffic stop?

In 1996, the U.S. Supreme Court in Whren v. United States tried answering this question. In so doing, the Court determined that pretextual traffic stops are “reasonable.” Pretextual traffic stops occur where an officer stops a vehicle and cites a lawful reason for the stop, yet the underlying reason is unlawful. The Whren Court determined that an officer’s intent is completely irrelevant to whether …

Revisiting Compassionate Release: The Sentencing Commission’S Compassionate Changes To The 2023 Compassionate Release Policy Statement, Rachel Wilson

Cleveland State Law Review

Compassionate release is a well-established exception to the Sentencing Reform Act’s requirement that a defendant’s sentence not be reduced after its final imposition. The Act requires the Sentencing Commission, through policy statement, to describe “extraordinary and compelling reasons” warranting compassionate release. However, the Sentencing Commission’s failure to convene as a quorum for nearly four years precluded any policy statement updates. In that time, the COVID-19 pandemic and the Bureau of Prisons’ internal issues further complicated the compassionate release process. This Note analyzes the 2023 amendment to the compassionate release policy statement, its potential implications, and suggests additional steps to be …

Free Exercise, The Respect For Marriage Act, And Some Potential Surprises, Mark Strasser

Cleveland State Law Review

Congress recently passed the Respect for Marriage Act to assure that certain marriages would remain valid even if the Supreme Court were to overrule past precedent and hold that the Constitution does not protect the right to marry a partner of the same sex or of a different race. However, the Act, as written, may not offer protection for certain same-sex or interracial marriages and may open the door to the federal protection of plural marriages, congressional intent notwithstanding, because of the Court’s increasingly robust free exercise jurisprudence.

“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry

Cleveland State Law Review

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …

The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh

Cleveland State Law Review

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …

Methodological Gerrymandering, David Simson

Cleveland State Law Review

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …

Can Superman Save The Supreme Court After Dobbs? Using Analogical Reasoning To Teach The American People The Superpower Of Stare Decisis, Brandon Stump

Cleveland State Law Review

In this Article, I propose that in this post-Dobbs America, if Americans are ever able to believe in, or even understand the magnitude of the Supreme Court’s power, practitioners, scholars, and educators should rely on the power of analogical reasoning, something attorneys are taught beginning their first weeks of law school. Using the power of analogy, we should take the simple story of Superman to explain the magnitude of the power held by the Supreme Court and the critical role that stare decisis must play in the Court’s decision-making. Perhaps if we explain legal principles and the judiciary by …