Supreme Court of the United States Commons^™

Blood On The Tracks, Thomas D. Russell

Seattle University Law Review

Streetcars were the greatest American tortfeasors of the early twentieth century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This Article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner …

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

The Judicial Activism Of Justice Anthony Kennedy, Carlos A. Ball

American University Law Review

Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.

This conclusion rests on three findings. …

When Amicus Curiae Briefs Are Inimicus Curiae Briefs: Amicus Curiae Briefs And The Bypassing Of Admissibility Standards, David Dematteo, Kellie Wiltsie

American University Law Review

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received …

The State Citizenship Clause, Kurt T. Lash

Law Faculty Publications

The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States and of the state wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Congress Is From Mars & Courts Are From Venus: Reconceptualizing Our Understanding Of Interbranch Relations, Lauren Hanson-Figueroa, Alexandra Piccirillo, Amy Steigerwalt

Emory Law Journal

In this Article, we argue for a reconceptualization of how to understand legislative-judicial relations in the United States. We propose that the Legislative and Judicial Branches of the U.S. government broadly reflect gender-stereotypical relations and divisions of labor in terms of both function and design. Congress was intended to be agentic and public, securely positioned as the public, lawmaking body; it fits the prototypical definition of Arendt’s “space of appearance.” The Legislative Branch can be conceptualized as men in a patriarchal culture, given agency and invited to action. In contrast, the courts reside in a more private sphere, toiling away …

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 …

A Child’S Constitutional Right To Family Integrity And Counsel In Dependency Proceedings, Rachel Kennedy

Emory Law Journal

Since the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil …

The Ghosts Of Chevron Present And Future, Gary S. Lawson

Faculty Scholarship

In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …

Ordered Liberty After Dobbs, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This Essay explores the implications of Dobbs v. Jackson Women’s Health Organization for the future of substantive due process (SDP) liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction. We situate Dobbs in the context of prior battles on the Supreme Court over the proper interpretive approach to deciding what basic liberties the Due Process Clause (DPC) protects. As a framing device, we refer to two competing approaches as “the party of [Justice] Harlan or Casey” versus “the party of Glucksberg.” In Dobbs, the dissent co-authored by Justices Breyer, Sotomayor, and Kagan represents the party of …

Living Traditionalism, Sherif Girgis

Journal Articles

From the Article

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right …

The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein

Articles by Maurer Faculty

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …

Unmasking The Power Dynamic Between Local School Boards And The State Executive Branch: Implications For Future Local School Safety Protocols, Karla Michelle Cejas

FIU Law Review

The COVID-19 pandemic has brought attention to the government’s power in controlling the operation of public schools. The legal and political differences among local school boards and the State’s COVID policies are exemplified in media headline battles pertaining to school reopening and the Governor’s so called “anti-mask mandate.” The State capitalized on its emergency powers at the expense of providing local school boards with the autonomy to enact district-wide protective measures. Local school boards have faced several challenges in arguing against State Emergency Orders including a difficulty with proving state compulsion to comply with its directives, overly broad statutory language …

The Need For Curtains Of The Soul: Privacy Versus Transparency In The Instrumented World Of Algorithmic Artificial Intelligence, Michael Martin Losavio

FIU Law Review

We approach a privacy singularity in pervasive data collection and inference that may reveal all about our lives. While privacy might not yet be dead, we struggle to maintain its shield for personal autonomy. Part of this contemporary challenge comes from the massive data sets generated every day everywhere. And then the powerful analytics that reveal all. This is further challenged by efforts at data transparency that may reveal too much of one’s life. Preservation of privacy, if we deem it important enough to preserve, must have a robust set of technical and legislative implementations on collection, storage, transmission and …

America’S Fraught Relationship With Privacy, Russell L. Weaver

FIU Law Review

No abstract provided.

A Pandemic Of Division: Finding Justice At Work In Challenging Times, Catherine L. Fisk

University of San Francisco Law Review

No abstract provided.

Constitutional Losses And (Some) Statutory Wins For Criminal Defendants: Select Criminal Law And Procedure Cases From The Supreme Court's 2022-2023 Term., Eve Brensike Primus, Mark Rucci

Articles

The Supreme Court’s 2022–23 Term included a number of important statutory interpretation rulings, as well as significant cases concerning the scope of the Confrontation Clause; the Venue, Vicinage, and Double Jeopardy Clauses; the federal courts’ ability to entertain claims of legal innocence; and the contours of the adequate and independent state ground doctrine. It also was the first term for Justice Ketanji Brown Jackson—the first former public defender and first Black woman to join the centuries-old institution. Although Justice Jackson joined a Court ruptured along ideological lines and confronting serious challenges to its legitimacy and ethical standards, she quickly proved …

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

Voting Justice: Why The Attack On Voting Rights Is Best Understood As A "Justice" Issue, Yalda Nia

University of San Francisco Law Review

No abstract provided.

Mysterizing Religion, Marc O. Degirolami

Faculty Publications

(Excerpt)

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …

“Engaged In”: The Rocky Marriage Between Commercial And Business Activity And Subchapter V Eligibility, Blake Clevenger

Emory Bankruptcy Developments Journal

The Small Business Reorganization Act of 2019, which created subchapter V bankruptcy relief for eligible small business debtors, is a step towards a small-business-friendly bankruptcy environment. The legislative history of subchapter V stated the goal of this new statute was to provide a cost-effective and streamlined path to reorganization to allow financially distressed small businesses to remain in business. To be eligible for subchapter V relief, a debtor must, among other requirements, be “engaged in commercial or business activities.” However, courts have continuously disagreed on the meaning of “engaged in commercial or business activities.” Courts have …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Scholarship

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …