Supreme Court of the United States Commons^™

Rbg And Gender Discrimination, Eileen Kaufman

Touro Law Review

No abstract provided.

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.

Locking The Golden Door And Throwing Away The Key: An Analysis Of Asylum During The Years Of The Trump Administration, Samantha B. Karpman

Touro Law Review

The years of the Trump Administration have certainly been some of the most divisive in modern American political history. One of the largest divides arose from former President Trump’s brazen, “zero tolerance” immigration policies that relentlessly attacked many forms of immigration coming into the United States. Asylum-based immigration, which allows immigrants to come to this country as a safe haven when they are fleeing persecution in their home countries, was one of former President Trump’s main targets. Former President Trump even came dangerously close to eliminating asylum-based immigration with his “Death to Asylum” policy in December of 2020. President Biden …

Of Arms And The Militia: Gun Regulation By Defining “Ordinary Military Equipment”, Edward J. Curtis

Touro Law Review

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. There is no obvious public safety exception.

Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the “ordinary military equipment” militia members are expected to provide. This may be accomplished using the rationale employed by the United States …

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks

Touro Law Review

No abstract provided.

No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, Georgia D. Reid

Touro Law Review

No abstract provided.

Restoring Trust In The Judiciary: A Critical, High Priority Project For The Biden Administration, Richard C. Cahn

Touro Law Review

No abstract provided.

Social Justice And The Supreme Court: Lessons From The Past, Vicki Lens

Mitchell Hamline Law Journal of Public Policy and Practice

This article revisits over sixty years of Supreme Court decisions that have affected the poor and racial minorities, using a novel approach that considers the synergistic relationship between different doctrinal areas rather than focusing on one area. Specifically, I appraise the Supreme Court’s doctrinal contributions from 1953 to the present across three foundational elements of social justice on behalf of the poor and people of color: the school integration cases under the Equal Protection Clause, a series of cases under the Fourth Amendment which sanctioned the police tactic of stop-and-frisk, and attempts to secure economic security for the poor through …

Robust Unionism As A Compelling Interest: Evaluating The Exacting Policies Of Janus, Seth Santini

University of San Francisco Law Review

No abstract provided.

Do The Police Protect And Serve All People In The United States?: A Survey Of The Problems Within Modern Policing And Solutions To Ensure The Police Protect And Serve Us All, Bianca Velez

University of San Francisco Law Review

No abstract provided.

The Effects Of National Security On Supreme Court Case Decisions Involving Civil Liberties, Callie Gerzanics

Williams Honors College, Honors Research Projects

This research project will analyze the effects that national security laws and tensions have on civil liberties and Supreme Court case decisions. National security has been a primary objective for the United States of America for as long as wars have been fought and enemies have been made. National security continues to be a concern for the U.S. government, especially with the prominence of technology that has made the U.S. more vulnerable to breaches in security, such as cybernetic attacks. The motivations behind this project stem from a concern of how national security can influence Supreme Court decisions, police arrests, …

Meta Rules For Ordinary Meaning, Anita S. Krishnakumar

Faculty Publications

(Excerpt)

“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English …

Cracking The Whole Code Rule, Anita S. Krishnakumar

Faculty Publications

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the …

Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett

Faculty Publications

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, from 1933 through 1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then, in early 1937, President Roosevelt proposed to “pack”—to enlarge—the Court, so that it would …

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Funeral Poverty, Victoria J. Haneman

University of Richmond Law Review

This Article makes a unique contribution to the literature by drawing attention to the financial burden of death service being shouldered by those who are “relatively poor,” or those for whom everyday life may be a financial struggle. The thesis is equal parts positive, normative, descriptive, and prescriptive: it is imperative that options be made available to transition human remains in a way that does not exacerbate cycles of poverty and allows for the living to preserve dignity. This need calls for important changes to existing legal structures, including modernization of consumer protection regulation, change to laws regulating the death …

Mergers, Macs, And Covid-19, Brian Jm Quinn

University of Richmond Law Review

The conventional wisdom is that MAE/MACs in merger agreements provide an opportunity for buyers to renegotiate merger agreements in the event of intervening adverse events. However, the experience following the COVID-19 outbreak suggests that the conventional wisdom is incorrect or at least overstated. In fact, MAE/MACs shift the risk of exogenous adverse events (like COVID-19) to buyers while leaving only the risks of adverse endogenous and semi-endogenous events with the seller. The consequence of this risk-shifting is to strictly limit the circumstances under which a buyer can credibly lean on a MAE/MAC to threaten to terminate a merger agreement and …

Almond Beverage, Oat Water, And Soaked Soybean Juice: How The Dairy Pride Act Attempts To Remedy Consumer Confusion About Plant-Based Milks, Michelle E. Hoffer

University of Richmond Law Review

With sales of plant-based milks, such as almond and soy milk, on the rise and dairy industry sales declining, dairy industry supporters are taking issue with plant-based milk products calling themselves “milk.”10 In an effort to combat the “mislabeling” of non-dairy products, a few Senators banded together in an attempt to save the dairy industry by creating the DAIRY PRIDE Act.11 The Act was introduced in an effort to prohibit plant-based milk producers from using the term “milk” on their products and instead use a less misleading name, such as “almond imitation milk” or “soy beverage.”12 This Comment argues that, …

Proving The Constitution: Burdens Of Proof And The Confrontation Clause, Enrique Schaerer

University of Richmond Law Review

In law, we never prove anything to 100% certainty. For factual propositions, the proponent has the burden of proving them to the satisfaction of a standard: a preponderance of the evidence at the low end; clear and convincing evidence in the middle; proof beyond a reasonable doubt at the high end. The standards are often explicit. Yet, for legal propositions, standards are often implicit or lacking altogether. This Article argues that, to decide legal issues, courts may look to similar burdens of proof that they use to decide factual issues. They should do so informally, using burdens of proof just …

Opportunity Gap: A Survey Of State Sourceof-Income Protection Laws And How They Address The Challenges Facing The Federal Housing Choice Voucher Program, Jamie H. Wood

University of Richmond Law Review

In 1968, the United States Congress enacted the Fair Housing Act (“FHA”) with the stated purpose of “prevent[ing] segregation and discrimination in housing, including in the sale or rental of housing . . . .” The FHA prohibits landlords from refusing to rent to members of certain protected classes, including race, color, national origin, sex, religion, disability, and familial status.2 Notably absent from this list is what is commonly referred to as “source-of-income” (“SOI”) protection, which extends antidiscrimination statutes to recipients of federal public assistance.

The federal government’s primary housing public assistance program is the Housing Choice Voucher (“HCV”) Program …

The Preemption Of Collective State Antitrust Enforcement In Telecommunications, Jacob P. Grosso

University of Richmond Law Review

The dichotomy between the levels of government provided murky guidance to telecommunications firms on what behavior is anticompetitive and what decisions firms will have to spend years defending. Despite T-Mobile and Sprint agreeing to sell off several subsidiaries, helping to create a new competitor, and surviving a gamut of regulatory reviews, these companies still could not merge. At this point, preventing the deal would cause irreversible harm to the merging parties.

The conflicts that arose in the T-Mobile-Sprint merger could have been solved through the preemption of collective state antitrust enforcement in the telecommunications market, which would balance the twin …

Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg

Faculty Publications

Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …

Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson

Faculty Scholarship

Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on …

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

American Common Market Redux, Richard Collins

Publications

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici …

Accountability For Employers Or Independence For Contractors? Accomplishing Ab5’S Labor Classification Goals In The Gig Economy, Chelsea Rauch

Seattle University Law Review

U.S. employment law traditionally classifies workers as either employees or independent contractors; each worker under this traditional legal rubric can only be classified as one or the other—there can be no ambiguity or overlap. An employee is generally defined as “a person hired for a regular, continuous period to perform work for an employer who maintains control over both the service details and the final product.” In contrast, an independent contractor is generally defined as “a worker who performs services for others, usually under contract, while at the same time retaining economic independence and complete control over both the method …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …