Supreme Court of the United States Commons^™

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

Articles

No abstract provided.

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski

Touro Law Review

No abstract provided.

Commentary: Justice Who Follows Scalia's Path Would Hurt The Working Class, Bruce A. Larson

Political Science Faculty Publications

During the campaign, Donald Trump released a list of 21 conservatives from which he promised to pick Supreme Court justices, should he win the election. With President-elect Trump apparently nearing a decision on a nominee to replace the late Justice Scalia, Senate Republicans are no doubt eagerly awaiting the chance to confirm Trump's pick and restore a conservative majority on the court. [excerpt]

Difficult Questions For The Senate Minority, John M. Greabe

Law Faculty Scholarship

This column is the first in a biweekly Constitutional Connections series that will examine the constitutional implications of various topics in the news. The author, John Greabe, teaches constitutional law and related subject at the University of New Hampshire School of Law. He also serves on the board of trustees of the New Hampshire Institute for Civics Education.

School Segregation And History Revisited, Alfred Avins

The Catholic Lawyer

No abstract provided.

Thompson V. Shapiro: Residence Requirements And The Right To Life

The Catholic Lawyer

No abstract provided.

Selective Conscientious Objection, Gaillard T. Hunt

The Catholic Lawyer

No abstract provided.

Emigration, Repatriation And The Reality Of Returned Youth In El Salvador, Isabel C. Duarte Vasquez

Master's Theses

According to US Customs and Border Protection, over 59 thousand unaccompanied minors from the Northern Triangle (Guatemala, Honduras and El Salvador) have been detained at the US border, of those 59 thousand, 17 thousand are from El Salvador. El Salvador is home to some of the most dangerous and ruthless gangs of the twenty-first century. Their ruthlessness comes from 1980s guerrilla warfare experience. In addition, El Salvador serves as a transshipment point for illicit substances from South America into Mexico. These dynamics fuel the homicide rate of the region as local gang members must protect their territory by any means …

Knowledge And Fourth Amendment Privacy, Matthew Tokson

Northwestern University Law Review

This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. From early decisions dealing with automobile searches to recent cases involving advanced information technologies, courts have relied on assessments of knowledge in a wide variety of Fourth Amendment contexts. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own.

This Article fills that gap. It starts by identifying the characteristics of Fourth Amendment knowledge. It finds, …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …

Habeas Corpus - An Erosion Of Law And Order?

The Catholic Lawyer

No abstract provided.

Implications Of The Allen Textbook Decision, Robert F. Drinan, S.J.

The Catholic Lawyer

No abstract provided.

An Unhurried Look At Obscenity, John M. Regan, C.M.

The Catholic Lawyer

No abstract provided.

Obscenity - A Re-Evaluation

The Catholic Lawyer

No abstract provided.

Friends With Benefits: Redefining Personal Gain In Insider Trading Under Salman V. United States, Wendy R. Becker

Duke Journal of Constitutional Law & Public Policy Sidebar

Since Congress has not enacted a statute outlawing insider trading, or the trading of securities based on non-public information, outright, courts have struggled to define what constitutes insider trading. The Supreme Court held that a fiduciary duty was breached when the insider privy to the information receives a “personal benefit.” This Commentary analyzes a pending Supreme Court case, Salman v. United States, which addresses whether pecuniary gain is needed to constitute the personal benefit necessary for insider trading, or if certain relationships are enough for the tip to inherently create a personal benefit for the insider. The author argues …

Free Speech Matters: The Roberts Court And The First Amendment, Joel M. Gora

Journal of Law and Policy

This article contends that the Roberts Court, in the period from 2006 to 2016, arguably became the most speech-protective Supreme Court in memory. In a series of wide-ranging First Amendment decisions, the Court sounded and strengthened classic free speech themes and principles. Taken together, the Roberts Court’s decisions have left free speech rights much stronger than they were found.

Those themes and principles include a strong libertarian distrust of government regulation of speech and presumption in favor of letting people control speech, a consistent refusal to fashion new “non-speech” categories, a reluctance to “balance” free speech away against governmental interests, …

Introduction; The Past, Present And Future Of Free Speech, Joel M. Gora

Journal of Law and Policy

This short paper introduces the papers and commentary produced at two significant First Amendment occasions. First was a 40^th anniversary celebration of the Supreme Court’s landmark 1976 decision in Buckley v. Valeo, the fountainhead ruling on the intersection between campaign finance restrictions and First Amendment rights. The questions were discussed provocatively by two of the leading players in that decision, James Buckley himself, now a retired United States Circuit Judge, and Ira Glasser, former head of the ACLU who helped organize a strange bedfellows, left-right coalition to challenge the new federal election campaign laws on First Amendment grounds. …

The Academy, Campaign Finance, And Free Speech Under Fire, Bradley A. Smith

Journal of Law and Policy

This article discusses the issue of campaign finance and the impact money has on the political process in the country. The author suggests campaign finance regulations that curb the current threat it poses to the system, as well as the First Amendment itself. Lastly, the author discusses the impact academics have had on the debate and this decline in support of free speech that has resulted from the debate.

Anti-Disruption Statutory Construction, Jonathan H. Adler

Cardozo Law Review

The article examines Chief Justice John Roberts' approach to statutory interpretation, characterizing it as a form of "Burkean minimalism." This approach prioritizes judicial restraint, avoiding disruptive outcomes and maintaining stability in the law, even if it requires departing from the plain meaning of statutory text. Roberts' decisions often reflect a pragmatic willingness to reinterpret statutes to prevent significant disruptions, uphold legislative enactments, and preserve constitutional harmony, rather than adhering strictly to textualist or doctrinal purity.

Summary Reversals In The Roberts Court, Edward A. Hartnett

Cardozo Law Review

The article examines the use of summary reversals by the Roberts Court, arguing that these decisions—where the Court reverses lower court rulings without full briefing or oral argument—serve important administrative functions and address specific types of errors, despite longstanding criticism. The author identifies patterns in the areas of law and types of errors targeted by these reversals, concluding that the practice persists due to its utility in maintaining judicial hierarchy and efficiency, even as critics question its propriety.

John Roberts And Constitutional Law, Brianne J. Gorod

Cardozo Law Review

The article examines Chief Justice John Roberts's judicial approach during his first decade on the Supreme Court, highlighting his generally conservative jurisprudence while noting instances where institutional concerns about the Court's legitimacy led him to prioritize law over ideology. Roberts's record reflects a tension between his conservative ideological convictions and his commitment to the Court's institutional reputation.

The Roberts Court And The New Textualism, Anton Metlitsky

Cardozo Law Review

The article explores the Roberts Court's approach to statutory interpretation, focusing on its adherence to the "new textualism," a methodology emphasizing the plain meaning of statutory text. While recent cases like King v. Burwell, Bond v. United States, and Yates v. United States appear to prioritize statutory purpose over textual meaning, the Court's reasoning reinforces its commitment to textualism by framing decisions within textualist methodology, even when outcomes seem to depart from strict textual interpretation.

Update On School Searches, Charles J. Russo

Educational Leadership Faculty Publications

School safety continues to present significant challenges for education leaders. Yet as educators work to maintain school safety, boards face a steady stream of litigation because officials have searched students suspected of putting themselves or others in danger. For example, students have been searched because they were suspected of bringing into schools such prohibited items as alcohol, weapons, and drugs.

Education leaders must develop up-to-date policies that ensure safety but that also comply with the Fourth Amendment’s prohibition of unreasonable searches and seizures.

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

Bankruptcy: Where Attorneys Can Lose Big Even If They Win Big, Stanislav Veyber

Brooklyn Journal of Corporate, Financial & Commercial Law

Historically, bankruptcy attorneys received the short end of the stick and were paid less for their services than attorneys in other fields of law. With the Bankruptcy Reform Act of 1978, Congress attempted to reduce the discrepancy in compensation. However, after the Supreme Court’s decision in Baker Botts v. ASARCO; L.L.C., the playing field remains unequal for bankruptcy attorneys. Following this decision, if a debtor disputes their attorney’s fee application, attorneys are at a disadvantage and cannot recover fees for defending their fee application. As a result, bankruptcy attorneys take an effective pay cut if they are faced with a …

Anti-Disruption Statutory Construction, Jonathan H. Adler

Faculty Publications

The claim of this brief Essay is that Chief Justice [John Roberts]’s approach to statutory interpretation exhibits a “Burkean minimalism” that seeks to reduce [the] seismic effect of the Court’s decisions. In particular, the Chief Justice is drawn toward statutory interpretations that avoid constitutional questions and preserve legislative enactments against constitutional challenge. Avoiding disruption is not an unyielding imperative, as the Chief Justice is sometimes willing to join broad judgments with significant effects. Avoiding disruption does, however, appear to be among the Chief Justice’s preferences when deciding cases, and when interpreting federal statutes in particular.

This abstract has been adapted …

The Amicus Machine, Allison Orr Larsen, Neal Devins

Faculty Publications

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. …

The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and …

The United States, Developing Countries And The Issue Of Intra-Enterprise Agreements, Joel Davidow

Georgia Journal of International & Comparative Law

Antitrust issues have become one of the main concern of the world economy community and the United Nations. For many years, the United Nations Conference on Trade and Development has multiplied the meetings to discuss the relationship between transnational enterprises and international investment and has engaged in reflections on methods to avoid a decline in international investment. However, these meetings failed to resolve the fundamental issue of the impact of international antitrust principles on restrictive arrangements between a foreign parent corporation and its local subsidiary, particularly where that subsidiary is in a developing country. If applied, multinational enterprises would be …

Further Punishing The Wrongfully Accused: Manuel V. City Of Joliet, The Fourth Amendment, And Malicious Prosecution, James R. Holley

Duke Journal of Constitutional Law & Public Policy Sidebar

Manuel v. City of Joliet is before the Supreme Court to determine whether detention before trial without probable cause is a violation of the Fourth Amendment, or whether it is merely a violation of the Due Process Clause. Every circuit except the Seventh Circuit treats this type of detention as being a violation of the Fourth Amendment; only the Seventh Circuit considers this question under the Due Process Clause. This commentary argues that the Supreme Court should look to its precedent, which clearly treats pretrial detention without probable cause as being a Fourth Amendment issue, and reverse the Seventh Circuit. …