Supreme Court of the United States Commons^™

The Daca Case: Agencies’ “Square Corners” And Reliance Interests In Immigration Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

President Trump's Crusade Against The Transgender Community, Brendan Williams

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Justice Anthony Kennedy As Senior Associate Justice: Influence And Impact, 53 Uic J. Marshall L. Rev. 907 (2019), Charles Jacob, Christopher Smith

UIC Law Review

No abstract provided.

Gamble, Dual Sovereignty, And Due Process, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast. What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls. At the center is the so-called “dual sovereignty” doctrine. This principle holds that separate sovereigns may prosecute for what looks like the same “offence”—to use the Constitution’s language—because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play. As a doctrine that relates to …

New Metrics And The Politics Of Judicial Selection, Jeremy Kidd

Articles

Recent Supreme Court nomination hearings have become increasingly rancorous, revealing the increasing political importance of the judiciary in our system of government. We need to know more about those who are chosen to wield this power, but those being considered have strong incentives to obscure all but the most basic characteristics of integrity, decorum, intellect, and courtesy. One of the most important decisions in our democracy is therefore made with far less information than would be ideal. Only through development of new metrics and refinement of existing metrics can we begin to cut through obfuscation and identify the goals and …

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin

Scholarly Works

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

Scholarly Works

An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …

Tweeting With A Purpose: Interpreting "Corrupt Persuasion" In 18 U.S.C. § 1512(B), Jessica Ochoa

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Magical Thinking And Trusts, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits the trusts that wealthy individuals create for family members. This Article makes two principal claims—one interpretative and the other normative. This Article explains why the …

The Faith And Morals Of Justice Antonin Scalia, David Forte

Law Faculty Articles and Essays

It is because of Justice Scalia's suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia's affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it.

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Labor Law Illiteracy: Epic Systems Corp. V. Lewisand Janus V. Afscme, Michael J. Yelnosky

Roger Williams University Law Review

No abstract provided.

The Uncertain Path Of Class Action Law, Sergio J. Campos

Articles

For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This "exceptional" view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, 'functional" view of the class action, one that does not view …

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a …

Aggressive Judicial Review, Political Ideology, And The Rule Of Law, Eric J. Segall

Faculty Publications By Year

For over one-hundred and fifty years, the United States Supreme Court has been the most powerful judicial body int he worth with life-tenured judges consistently invalidating state and federal laws without clear support in constitutional text or history. This paper focuses on what should be the appropriate role of life-tenured, unelected federal judges in the American system of separation of powers. The tension is between wanting judges to enforce the supreme law of the Constitution while at the same time keeping judges within their assigned roles of enforcing not making the law. Much of constitutional scholarship in the United States …

Constitutional Cohesion And The Right To Public Health, Daniel G. Aaron, James G. Hodge, Haley Augur, Ashley Cheff, C. Joseph Ross Daval, Drew Hensley

Utah Law Faculty Scholarship

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally is an interpretive reality of our existing constitutional infrastructure. In essence there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and …

Smith, Scalia, And Originalism, Amul R. Thapar

Catholic University Law Review

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Indiana Law Journal

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature—which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.” The result is a disorienting kind of biography by committee, one which produces not one all-encompassing …

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney

Fordham Law Review

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an in- depth …

Gender Pay Gap: The Time To Speak Up Is Now, Samantha M. Sbrocchi

Touro Law Review

No abstract provided.

The Post-Alice Jurisprudence Pendulum And Its Effects On Patent Eligible Subject Matter, John Robert Sepúlveda

Touro Law Review

No abstract provided.

Legislatively Overturning Fort Stewart Schools: The Trump Administration's Assault On Federal Employee Collective Bargaining, Richard J. Hirn

Indiana Law Journal

In his Fiscal Year 2019 Budget Submission, President Trump noted that about 60 percent of Federal employees belong to a union and lamented that dealing with Federal employee unions ostensibly “consume[s] considerable management time and taxpayer resources, and may negatively impact efficiency, effectiveness, cost of operations, and employee accountability and performance.” Although he acknowledged that Federal employee unions can negotiate over fewer matters than can unions in the private sector, he nonetheless claimed that collective bargaining contracts can negatively impact agency performance, workplace productivity, and employee satisfaction. The President told Congress that “[a]gency managers will be encouraged to restore management …

The New Oral Argument: Justices As Advocates, Tonja Jacobi, Matthew Sag

Faculty Articles

This Article conducts a comprehensive empirical inquiry of fifty-five years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant …