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.

The Popular Constitutional Canon, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

Long Live The Death Penalty? One Progressive's State's Experience, Brendan Williams

Cardozo Journal of Equal Rights & Social Justice

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.

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.

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.

The Emperor’S New Clothes: An Intersection Of Presidential Immunity And Criminal Accountability, Nicholas J. Maggio

Touro Law Review

No abstract provided.

"I'M Leavin' It (All) Up To You": Gundy And The (Sort-Of) Resurrection Of The Subdelegation Doctrine, Gary S. Lawson

Faculty Scholarship

In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue …

How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman

Scholarship@WashULaw

The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in …

Teacher For The Nation, Daniel Epps

Scholarship@WashULaw

In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.

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. …

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the …

Sinking The Island Of Constitutional Tax Immunity: A Uniform Approach To State Taxes On Goods In Transit Under The Import-Export Clause, Warren F. Smith

Georgia Law Review

The Framers of the U.S. Constitution adopted the
Import-Export Clause to prohibit the states from
interfering in international relations, to preserve import
revenue for the federal government, and to ensure
harmony between the states. The purposive inquiry
established by Michelin and Washington Stevedoring is
applied for all imports and exports except one category:
export goods in transit. The pre-Michelin decision,
Richfield Oil, provides complete constitutional tax
immunity for export goods in transit. This island of
constitutional tax immunity forces local taxpayers to
subsidize exporters and foreign consumers and unfairly
burdens coastal states with the regulatory,
administrative, and environmental costs of …