Supreme Court of the United States Commons^™

Deemed Acceptance, Not Deemed Consent: Nonvoting Stakeholders And A Uniform Conspicuousness Standard For Opt-Out Third-Party Releases, Zach Cavagnaro

Student Scholarship

After Harrington v. Purdue Pharma, the fight over third-party opt-out releases has shifted from whether consent is necessary to what consent means. The Supreme Court held that the Bankruptcy Code does not authorize non-consensual nondebtor releases outside 11 U.S.C § 524(g), and—critically—left out what exactly counts as consent. The fight over consent is expected to command a lot of litigation, so a simple, uniform conspicuousness standard for nonvoting stakeholders’ opt-out releases can help alleviate litigation costs and focus on the definition of consent. This Comment argues that courts should evaluate consent through a unified, contract-law-grounded conspicuousness standard calibrated to the …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Incarcerated Individuals' Lives Do Not Matter: A Fourteenth Amendment Procedural Due Process Problem, Marshall Farber

Et Cetera

This Note examines the Seventh Circuit’s decision in Love v. Vanihel, in which Tony Love lost 5,700 days of good-time credit following the Indiana Department of Corrections’ issuance of Executive Directive #17-09 (“ED 17-09”). Prior to this directive, the state’s disciplinary code capped good-time credit loss at one year per offense, but ED 17-09 imposed significantly harsher sanctions, stripping Love of over 15 years of accrued credit after a single disciplinary infraction. The Seventh Circuit affirmed the district court’s decision, holding that Love had procedurally defaulted and forfeited his due process claims. This Note argues that the Seventh Circuit’s …

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. …

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 …

Without Due Process Of Law: The Dobbs Decision And Its Cataclysmic Impact On The Substantive Due Process And Privacy Rights Of Ohio Women, Jacob Wenner

Journal of Law and Health

Since the overturning of prior abortion precedents in Dobbs v. Jackson Women’s Health Organization, there has been a question on the minds of many women in this country: how will this decision affect me and my rights? As we have seen in the aftermath of Dobbs, many states have pushed for stringent anti-abortion measures seeking to undermine the foundation on which women’s reproductive freedom had been grounded on for decades. This includes right here in Ohio, where Republican lawmakers have advocated on numerous occasions for implementing laws seeking to limit abortion rights, including a 6-week abortion ban advocated …

“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 …

Roads Not Taken On Affirmative Action, Robert L. Tsai

Faculty Scholarship

The law of affirmative action is a mess. In the short term, legal doctrine is constrained by path dependence, but its long-term future is murkier due to the many unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right …

R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro

Cleveland State Law Review

This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out …

In Pursuit Of A Modern Standard: The Constitutional Proportions Of Collateral Harm From Pursuits And Police High-Speed Driving, Julian Gilbert

Cleveland State Law Review

Police chases and high-speed driving are common practices that pose a substantial amount of harm and are often unjustified. The benefits of such chases are questionable, and rapid police action at all costs is often unnecessary. When bystanders are injured as a result of police high-speed driving, there are few avenues to have their rights vindicated, and federal court cases require plaintiffs to meet an almost impossible burden. However, under the United States Supreme Court case of County of Sacramento v. Lewis, a plaintiff can put forth evidence that their substantive due process right to life under the Fourteenth …

The Intersection Of Judicial Interpretive Methods And Politics In Supreme Court Justices’ Due Process Opinions, Julie Castle

The Compass

The Supreme Court, a nine seat bench of unelected and lifetime tenured Justices, determines the constitutionality of dozens of cases each year. In this thesis, I research to what extent the political affiliation of the Justices affects the judicial decision making process and, ultimately, case outcomes. Using pattern matching, I evaluate due process opinions from Justice Breyer, Justice O’Connor, and Justice Scalia, all of whom have established constitutional analysis methods, in order to determine if they reasonably adhere to their established method. Due to the highly political nature of due process cases, variance between the expected (adherence to the Justices’ …

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell

Faculty Scholarship

The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …

Maintaining Due Process By Extending Bristol-Myers Squibb Co. To Federal Class Actions, Felicia D. Sych

American University Law Review

In 2017, the U.S. Supreme Court issued its seminal decision in Bristol Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question …

The Apparition Amendment: The Potential Effects Of The Addition Of A Federal Equal Rights Amendment To The United States Constitution In A Post-Dobbs United States, Alexa Liverano

Journal of Race, Gender, and Ethnicity

This Note will explore the feasibility of amending the federal Constitution to add an Equal Rights Amendment, and will outline previous attempts to pass such an amendment. It will also explore the potential ramifications of the additions of such an amendment. This Note will also inspect the language of Equal Rights Amendments within State constitutions and discuss what language ought to be included should a federal amendment be published in light of the United States Supreme Court’s decision in Dobbs. Part one will consider the legal viability of the Equal Rights Amendment of 1972 today. Part two will explore the …

Procedural Justice And The Shadow Docket, Taraleigh Davis, Sara C. Benesh

Emory Law Journal

This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket.

Utilizing an experimental survey conducted over three critical time points—coinciding with the leak …

Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh

Law Faculty Articles and Essays

Fourteenth Amendment substantive due process fundamental rights doctrine is about love. It is, at least, based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case in which the Supreme Court held that same-sex marriage is a fundamental right of individual autonomy and dignity.

Part I of this Article discusses the concept of love. Part II examines Justice Kennedy’s majority opinion in Obergefell and argues that it expresses unconditional love for LGBT people in tone, language, and substance. Part III argues that, in Obergefell, Kennedy’s key reasons for concluding that marriage is …

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang

Vanderbilt Law Review

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”

This Article challenges that …

Does Due Process Have An Age Limit? Why The Law Concerning The Parental Right To Freedom Of Intimate Association In The Relationship With An Adult Child Is A Mischaracterization Of A Circuit Split, Bryan Schenkman

Touro Law Review

No abstract provided.

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Police Brutality And State-Sanctioned Violence In 21st Century America, Itohen Ihaza

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Publications

No abstract provided.

Notice, Due Process, And Voter Registration Purges, Anthony J. Gaughan

Cleveland State Law Review

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority ruled that the Ohio law complied with the National Voter Registration Act of 1993 (NVRA) as amended by the Help America Vote Act of 2002 (HAVA). This Article contends that the controlling federal law—the NVRA and HAVA—gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues …

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …

U.S. Supreme Court Surveys: 2016 Term. Murr. V. Wisconsin: Identifying The Proper "Parcel As A Whole" In Regulatory Takings Cases, Bruce I. Kogan

Roger Williams University Law Review

No abstract provided.

U.S. Supreme Court Surveys: 2016 Term. Murr. V. Wisconsin: Identifying The Proper "Parcel As A Whole" In Regulatory Takings Cases, Bruce I. Kogan

Law Faculty Scholarship

No abstract provided.

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming