Supreme Court of the United States Commons^™

Inimicus Libertatis: Chief Justice Rehnquist’S Majority Or Plurality Opinions In The Field Of Criminal Procedure, Donald E. Wilkes Jr.

Scholarly Works

Since the early 1970’s an increasingly conservative Supreme Court of the United States has been leading this country through a “Criminal Procedure Counterrevolution” (also called “The Rehnquisition”), during which the federal rights and remedies of criminal defendants have been inexorably and significantly eroded. There are numerous books and law review articles discussing this counterrevolution. Chief Justice Rehnquist, the most articulate and ideological of the Courts conservative justices, may properly be regarded as the intellectual founder and leader of this trend in favor of restricting criminal procedure rights.

This article analyzes and provides a bibliography of Supreme Court criminal procedure opinions …

John Marshall, The Great Chief Justice, William & Mary Law School

Popular Media

John Marshall, the nation's fourth chief justice, was among the first to study law at W&M.

Dead Precedents, Riley T. Svikhart

Notre Dame Law Review Reflection

Part I explores the Roberts Court’s reluctance to overrule Supreme Court precedents more thoroughly. Part II provides a modest account for this phenomenon. Section II.A considers the relationship between the Roberts Court’s reluctance to overrule Supreme Court precedents and its law declaration bent. Section II.B evaluates this reluctance in light of the doctrinal commitment of stare decisis. Finally, Section II.C examines the link between the Roberts Court’s treatment of dying precedents and its trademark adherence to the constitutional avoidance doctrine.

Confirmation Bias, Patrick Barry

Articles

Supreme Court confirmation hearings are vapid. Supreme Court confirmation hearings are pointless. Supreme Court confirmation hearings are harmful to a citizenry already cynical about government. Sentiments like these have been around for decades and are bound to resurface each time a new nomination is made. This essay, however, takes a different view. It argues that Supreme Court confirmation hearings are a valuable form of cultural expression, one that provides a unique record of as the theater critic Martin Esslin might say, a nation thinking about itself in public.

Lost At Sea: The Continuing Decline Of The Supreme Court In Admiralty, Michael Sevel

University of Miami Law Review

For the first 200 years of its history, the United States Supreme Court served as the primary leader in the development of, and its cases the primary source of, the admiralty and maritime law of the United States. That appears to be changing. The Court’s admiralty cases over the last quarter century indicate that it is slowly giving up its traditional leading role in creating and developing rules of admiralty law, and instead deferring to Congress to make those rules, a trend that is tantamount to abandoning its Article III constitutional duty to serve as the country’s only national admiralty …

Trumping The Ninth Circuit: How The 45th President’S Supreme Court Appointments Will Strengthen The Already Strong Federal Policy Favoring Arbitration, Eric Schleich

Arbitration Law Review (2009 - Present)

No abstract provided.

The Future Of Class Action Waivers In Employment Agreements: Lewis Creates A Framework For The United States Supreme Court, Meghan Gonyea

Arbitration Law Review (2009 - Present)

No abstract provided.

Supreme Court Term In Review: Ot 2016, Donald Roth

Faculty Work Comprehensive List

"Even though the Court is expected to be apolitical, there are many who assume that the judges are beholden to party politics."

Posting about recent major cases before the U.S. Supreme Court from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.

http://inallthings.org/supreme-court-term-in-review-ot-2016/

Of Carrots And Sticks: General Jurisdiction And Genuine Consent, Craig Sanders

Northwestern University Law Review

The United States Supreme Court’s 2014 decision in Daimler AG v. Bauman changed how the courts will determine whether companies should be subject to general personal jurisdiction. In 1945, Pennoyer v. Neff’s geographical fixation gave way to International Shoe Co. v. Washington, which provided a test for courts to determine whether corporations had sufficient contact with a forum to meet the bar for personal jurisdiction there. Specific jurisdiction requires “minimum contacts,” provided the action is satisfactorily related to the forum. However, to be subject to general jurisdiction, a corporation must possess more than just “minimum contacts,” and claimants …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

Refugee Eo: Hawaii’S Response To The Government’S Request For A Stay, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Refugee Eo Update: The Supreme Court Hands Each Side A Partial Victory, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Hawaii Judge Watson Declines To Clarify Scope Of Preliminary Injunction On Executive Order 13,780, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Scotus's 2016-17 Term: The Calm Before The Storm?, John M. Greabe

Law Faculty Scholarship

[Excerpt] “The court's just-completed 2016-17 term contained no . . . blockbusters. Its highest profile ruling was an unsigned opinion that modified preliminary injunctions issued by lower courts to prevent President Donald Trump's "travel ban" orders from going into immediate effect.

But that ruling did not decide whether the president's orders are in fact unconstitutional. Instead, the court put that important question off until the fall, by which time further factual developments -for example, the executive branch completing its review and deciding to lift or modify the bans -may well render the issue moot.”

Implementing The Refugee Eo: The State Department Should Consider Refugee Agency Assurances As Bona Fide Relationships, Peter Margulies

Law Faculty Scholarship

No abstract provided.

A Textual Analysis Of Whistleblower Protections Under The Dodd-Frank Act, Brent T. Murphy

Notre Dame Law Review

This Note endorses the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C., and argues that the plain language of Dodd-Frank limits its whistleblower protections to individuals who provide information to the SEC. This Note argues that the reasoning of the Second Circuit in Berman v. Neo@Ogilvy LLC relying on the Supreme Court’s decision in King v. Burwell is inapposite, and that the Second Circuit introduced ambiguity where no ambiguity previously existed and improperly extended Chevron deference to the SEC.

Mad Men And Dead Men: Justification For Regulation Of Computer-Generated Images Of Deceased Celebrity Endorsers, Kerry Barrett

Cleveland State Law Review

Pursuant to the Federal Trade Commission Act, the Federal Trade Commission (FTC) is charged with consumer protection through the prohibition of unfair and deceptive trade practices. An unfair and deceptive trade practice is gaining in prominence and has not yet been subjected to FTC regulation. Computer-generated imagery (CGIs) of deceased celebrity endorsers are misleading to consumers and constitute a false advertisement. This Note evaluates how digitally resurrected endorsers pervert the consumer decision-making process through analysis of issue-relevant thinking, the match-up hypothesis, event-study analysis, social adaptation theory, and transfer theory. This Note also accounts for the macroeconomic effect of regulation of …

Justice Scalia And Tonto Fistfight In Heaven, Ray Martin

American Indian Law Journal

No abstract provided.

Implementing The Refugee Eo: Add Grandparents, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Examining Pennsylvania Human Relations Commission V. School District Of Philadelphia: Considering How The Supreme Court’S Waning Support Of School Desegregation Affected Desegregation Efforts Based On State Law, Steven L. Nelson, Alison C. Tyler

Seattle University Law Review

This study examines the enforcement of desegregation orders mandated under state law as a result of the Supreme Court’s handling of school desegregation cases at the federal level. The Article tracks the development of school desegregation cases starting shortly before Brown v. Board of Education and continues through the recent voluntary school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1. The Article establishes four distinct generations of school desegregation cases at the federal level and determines that the political tides created, in large part, by the U.S. Supreme Court’s handling of federal school desegregation cases …

The Travel Ban In The Supreme Court: Crafting A Workable Remedy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Putting Faith In Europe: Should The U.S. Supreme Court Learn From The European Court Of Human Rights?, Antony Barone Kolenc

Georgia Journal of International & Comparative Law

No abstract provided.

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Byrd V. U.S. (U.S. June 12, 2017) (No. 16- 1371)., Janet Moore

Faculty Articles and Other Publications

More than two centuries after it was ratified, the Fourth Amendment continues to protect the “right of the people to be secure” from “unreasonable searches.” U.S. Const. amend. IV. Modern technological advances and social developments do not render our rights “any less worthy of the protection for which the Founders fought.” Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). This Court plays an essential role in ensuring that the Fourth Amendment retains its vitality as an indispensable safeguard of liberty, even as Americans dramatically change the ways they organize their everyday affairs. This case calls for the Court to …

Race, Partisan Gerrymandering And The Constitution, John M. Greabe

Law Faculty Scholarship

[Excerpt] “For the most part, the Constitution speaks in generalities. The 14th Amendment, for example, instructs the states to provide all persons the "equal protection of the laws." But obviously, this cannot mean that states are always forbidden from treating a person differently than any other person. Children can, of course, be constitutionally barred from driving, notwithstanding the Equal Protection Clause. Thus, there is a need within our constitutional system to refine the Constitution's abstract provisions.”

Clarence Thomas The Questioner, Ronnell Andersen Jones, Aaron L. Nielson

Northwestern University Law Review

One of Justice Clarence Thomas’s most remarked upon characteristics is his reluctance to ask questions during oral argument. Observers have criticized him for his silence, with some suggesting that it reflects disrespect for his colleagues and the advocates appearing before the Supreme Court. Others defend his silence, noting, for instance, that historically oral argument played a much less significant role and that Justice Thomas’s written opinions speak for themselves. What has been overlooked in this debate, however, is the fact that Justice Thomas is very talented at asking questions. Indeed, in many ways, he is a model questioner. Drawing on …

Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka

Cleveland State Law Review

Using data from punitive damages decisions of U.S. federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following: (1) there is no apparent statistical difference between the levels of jury and judge awards; (2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards; (3) with regard to the cases involving remittitur, or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards; (4) as the levels of compensatory awards go up, …

Reflection: How Multiracial Lives Matter 50 Years After Loving, Lauren Sudeall Lucas

Faculty Publications By Year

Black Lives Matter. All Lives Matter. These two statements are both true, but connote very different sentiments in our current political reality. To further complicate matters, in this short reflection piece, I query how multiracial lives matter in the context of this heated social and political discussion about race. As a multiracial person committed to racial justice and sympathetic both to those pushing for recognition of multiracial identity and to those who worry such recognition may undermine larger movements, these are questions I have long grappled with both professionally and personally. Of course, multiracial lives matter - but do they …

The New Unconstitutionality Of Juvenile Sex Offender Registration: Suspending The Presumption Of Constitutionality For Laws That Burden Juvenile Offenders, Spencer Klein

Michigan Law Review

In Smith v. Doe, the Supreme Court held that Alaska’s sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed …

Should The President’S Words Matter In Court?, Katherine A. Shaw

Online Publications

The most striking aspect of last Thursday’s opinion by the United States Court of Appeals for the Fourth Circuit, which rejected the Trump administration’s latest effort to revive its travel ban for individuals from six predominantly Muslim countries, was its reliance on Donald Trump’s own words as candidate, president-elect and president. The court leaned particularly heavily on his now-famous campaign statement that he was “calling for a total and complete shutdown of Muslims entering the United States.”

Tribal Supreme Court Project: Ten Year Report, Richard Guest

American Indian Law Journal

No abstract provided.