Supreme Court of the United States Commons^™

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

Creditor’S Failure To File A Proof Of Claim Is Inexcusable Where Potential Danger Of Prejudice To Debtor Exists, Meghan Lombardo

Bankruptcy Research Library

(Excerpt)

The Federal Rules of Bankruptcy Procedure provide that when an act is required … to be done at or within a specified period … the court for cause shown may at any time in its discretion… on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Rule 9006 grants a pardon for late filings that were caused by neglect. The Supreme Court has defined neglect as “‘giv[ing] little attention or respect’ to a matter or… ‘to leave undone or unattended to especially …

Hitting The "Bullseye" In Supreme Court Coverage: News Quality In The Court's 2014 Term, Michael A. Zilis, Justin Wedeking, Alexander Denison

Political Science Faculty Publications

No abstract provided.

The Fourth Amendment Categorical Imperative, David Gray

Michigan Law Review Online

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition …

Lafler V. Cooper's Remedy: A Weak Response To A Constitutional Violation, Matthew T. Ciulla

Notre Dame Law Review Reflection

The Lafler v. Cooper Court should have chosen the remedy of specific performance of the original plea bargain. The specific performance remedy, long implemented by federal courts in Lafler-like scenarios, and ordered by the district court in Lafler, precisely cures the Lafler injury—the accused regains the ability to accept the original plea offer, except he now has the benefit of effective assistance of counsel. The specific performance remedy, when coupled with the safeguards of the Strickland prongs, poses little risk of abuse, and gives heft to the Sixth Amendment’s guarantee of effective assistance of counsel in the plea …

Marriage Equality: The Paralleled Progress Between Public Approval And Supreme Court Decisionmaking, Riley Erin Fredrick

Florida State University Law Review

No abstract provided.

Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman

Scholarly Articles

A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specificity of the causal link between Goodyear’s misconduct and the amount of the civil sanction.

Table Of Contents

Touro Law Review

No abstract provided.

Moving From A Brandeis Brief To A Brandeis Law Firm: Challenges And Opportunities For Holistic Legal Services In The United States, Judith A. Mcmorrow

Touro Law Review

No abstract provided.

Louis Brandeis And Contemporary Antitrust Enforcement, Kenneth G. Elzinga, Micah Webber

Touro Law Review

No abstract provided.

Justice Scalia, Originalism And Textualism, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

The Nondischargeability Of Government Cleanup Orders, Christina Mavrikis

Bankruptcy Research Library

(Excerpt)

One of the primary purposes of title 11 of the United States Code (the “Bankruptcy Code”) is to provide debtors with a financial fresh start. Upon the filing of a bankruptcy petition by or against the debtor, section 362(a) of the Bankruptcy Code provides that all entities are barred from actions to collect, assess, or recover any pre-petition claims against the debtor. In general, the automatic stay serves to halt any pending legal proceedings against the debtor so that the pre-petition claims can be managed and discharged by the bankruptcy court. There are, however, exceptions to the automatic stay. …

Data Breaches, Identity Theft, And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits?, Bradford C. Mank

Notre Dame Law Review

In data breach cases, the plaintiff typically alleges that the defendant used inadequate computer security to protect the plaintiff’s personal data. In most, but not all cases, the plaintiff cannot prove that a hacker or thief has actually used or sold the data to the plaintiff’s detriment. In most cases, a plaintiff alleges that the defendant’s failure to protect his personal data has caused him damages by increasing his risk of suffering actual identity theft in the future and therefore imposed costs on the plaintiff when he reasonably takes measures to prevent future unauthorized third-party data access by purchasing credit …

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

Franchise Tax Board Of California V. Hyatt: A Split Court, Full Faith And Credit, And Federal Common Law, Jonathan M. Gutoff

Law Faculty Scholarship

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

We "Kent" Keep Transferring Kids Without A Hearing: Using Recent Supreme Court Jurisprudence To Revive Kent V. United States And End Mandatory Transfer For Juveniles, Summer Woods

Criminal Law Practitioner

No abstract provided.

The Noteworthy Absence Of Women Advocates At The United States Supreme Court, Jennifer Crystal Mika

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"[R]Elegated Through No Fault Of Their Own To A More Difficult" System: Applying The Obergefell Opinion To Custody Principles, Melanie Kalmanson

The Modern American

No abstract provided.

Navigating The Rubicon: Constitutionalism And The Inevitability Of The Social Contract, 51 J. Marshall L. Rev. 1 (2017), Lillian M. Spiess

UIC Law Review

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Scholarly Articles

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh

Scholarly Articles

Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay …

A Less Corrupt Term," Supreme Court Round-Up For Ot 2016, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Scholarly Articles

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

The Supreme Court’S Limited Public Forum, Sonja R. West

Scholarly Works

When discussing the issue of transparency at the United States Supreme Court, most commentators focus on the line between public and private. Yet, transparency is not always such a black-or-white issue. There are, in fact, a surprising number of significant Court moments that occur neither wholly in public nor completely in private. Through policies that obstruct access by the general public and exploit real-world limitations on the press and practitioners, the justices have crafted a grey area in which they can be “public,” yet only to select audiences. The effect is that few outside the courtroom ever learn about these …

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

Scholarly Works

Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

Disarming State Action; Discharging State Responsibility, Zanita E. Fenton

Articles

No abstract provided.

Zone Of Nondeference: Chevron And Deportation For A Crime, Rebecca Sharpless

Articles

No abstract provided.

Clarence Thomas The Questioner, Ronnell Anderson Jones

Utah Law Faculty Scholarship

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Many have criticized him for his silence. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that the Justice’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on the most comprehensive collection of Thomas’s oral argument questions ever compiled, we urge the Justice to ask more questions …