Supreme Court of the United States Commons^™

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Justice Stevens And Securities Law, Lyman P.Q. Johnson, Jason A. Cantone

Scholarly Articles

In this Article, we tell the overlooked story of Justice Stevens's important role in Supreme Court securities law decisions. In Part I, where we briefly highlight Stevens's career before his 1975 appointment to the Supreme Court, we observe that we can identify no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals. This commitment to authoring opinions stemmed, in …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Dynamism In U.S. Pleading Standards: Rules, Interpretation, And Implementation, Jeffrey E. Thomas

Book Chapters

No abstract provided.

Soundings And Silences, Laurence H. Tribe

Michigan Law Review Online

My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence …

The Court And The Cannonball: An Inside Look, Lee Levine, Stephen Wermiel

American University Law Review

No abstract provided.

My Body Is My Temple: Utilizing The Concept Of Dignity In Supreme Court Jurisprudence To Fight Sex Reassignment Surgery Requirements For Recognition Of Legal Sex, Doran Shemin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Out Of Touch: Shelby V. Holder And The Callous Effects Of Chief Justice Roberts’S Equal State Sovereignty, 49 J. Marshall L. Rev. 751 (2016), Adam Bolotin

UIC Law Review

No abstract provided.

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, 49 J. Marshall L. Rev. 925 (2016), Angela Mae Kupenda

UIC Law Review

No abstract provided.

Implicit In The Concept Of Ordered Liberty: How Obergefell V. Hodges Illuminates The Modern Substantive Due Process Debate, 49 J. Marshall L. Rev. 1021 (2016), Matthew Grothouse

UIC Law Review

This Article uses the historical sweep of the Due Process Clause to evaluate the merits of Obergefell’s majority and dissenting opinions. Specifically, the Article explains why the Due Process Clause’s prohibition on arbitrary punishments in general—and legislative judgments in particular—invariably mandates the judicial nullification of arbitrary and irrational legislative acts. What exactly constitutes a “legislative judgment” and how much deference courts should exercise in examining legislative acts are the crucial and largely unanswered questions lying at the heart of the Obergefell case (and in substantive due process cases in general). Although the Obergefell Court’s discussion focuses on a single case, …

Missed Opportunities: The Unrealized Equal Protection Framework In Maher V. Roe And Harris V. Mcrae, Amelia Bailey

Michigan Journal of Gender & Law

This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the …

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

The Court After Scalia, Kevin C. Walsh

Scholarly Articles

In this editorial, Professor Walsh surveys the 2015-2016 U.S. Supreme Court term, with particular attention to the effects the late Justice Antonin Scalia's absence had on the Court's decisions.

New Era Or Just One Step In The History Of The Supreme Court Of The United States?, Rett R. Ludwikowski

Scholarly Articles

The vacancy arising as a result of the death of Antonin Scalia, one of the nine justices of the Supreme Court of the United States, paralyzed the Court’s work for a few months. Even Donald Trump’s victory in the presidential election did not immediately resolve the problem of political balance in the Court.

This article, commenting on the stalemate over the Supreme Court, tries to answer some questions. Is the process of politicization of formally politically independent justices a natural result of mutual attrition of the authorities? Does the situation after Scalia’s death undermine the separation of powers, a fundamental …

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

University of Michigan Journal of Law Reform

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

The Olmstead Imperative: The Right To Live In The Community And Beyond, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

Of the 20 Americans with Disabilities Act (ADA) cases that the United States Supreme Court has decided in the 25 years of the statute’s existence, Olmstead v. L.C. by Zimring is without doubt the most significant for people with intellectual and developmental disabilities. Olmstead is the only Supreme Court ADA case that specifically addresses the rights of people with intellectual and developmental disabilities, but its importance goes well beyond this specific fact. In this essay, I set out the holding of the Olmstead decision, its connection to, and extension of, prior case law, the extent of its subsequent enforcement, and …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

Scholarly Articles in Law Reviews & Journals

As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Panhandling And The First Amendment: How Spider-Man Is Reducing The Quality Of Life In New York City, Steven J. Ballew

Brooklyn Law Review

Recently, New York and other cities have taken steps to regulate panhandling activity in their communities. These regulations are informed by Broken Windows policing, which emphasizes addressing quality-of-life issues as a strategy for reducing crime. Yet government-imposed limitations on panhandling raise concerns about whether such measures violate panhandlers’ First Amendment rights. This note explores whether it is possible to separate the act of panhandling—defined as approaching a stranger in public and requesting immediate and gratuitous cash payment for oneself—from expression that is protected by the First Amendment. It concludes that, based on a concurrence from Justice Kennedy in International Society …

"Outsmarting" Death By Putting Capital Punishment On Life Support: The Need For Uniform State Evaulations Of The Intellectually Disabled In The Wake Of Hall V. Florida, Taylor B. Dougherty

Brooklyn Law Review

While the Supreme Court has yet to hold capital punishment per se unconstitutional, the Court has exempted certain groups of individuals from being eligible for capital punishment, due to concerns about the protection against cruel and unusual punishment provided for in the 8th Amendment. One such group is individuals who are intellectually disabled (the term which replaced the long-used mental retardation). But in exempting such individuals from capital punishment in its decision in Atkins v. Virginia, the Court left it to the states to establish metrics for determining which defendants are in fact intellectually disabled so as to warrant …

Race, Restructurings, And Equal Protection Doctrine Through The Lens Of Schuette V. Bamn, Steve Sanders

Brooklyn Law Review

In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan voters had violated principles of the fair lawmaking process when they amended their state constitution to prohibit race-conscious affirmative action in public university admissions, reasoning that the amendment, known as “Proposal 2,” constituted a political restructuring that had violated the Equal Protection Clause by disadvantaging African Americans from being able to equally access political change. However, the Sixth Circuit was careful to avoid saying that Proposal 2 created a racial classification or was motivated by a purpose of discriminating on the basis of race. Instead, consistent …

The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld

Michigan Law Review First Impressions

Everyone has strong feelings about Justice Scalia. Lionized by the political right and demonized by the left, he has been among the most polarizing figures in American public life over the course of the last halfcentury. It is hardly surprising, then, that in the weeks since Justice Scalia’s death, the public discourse surrounding his legacy has exhibited something of a split personality. There have, of course, been plenty of appropriately respectful—even admiring—tributes from some of the Justice’s ideological adversaries; and here and there one of the Justice’s champions has acknowledged, with a hint of lament, the acerbic quality of some …

The Return Of Coverture, Allison Anna Tait

Michigan Law Review First Impressions

Once, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Today, the marriage narrative has been reversed and the prevailing attitude is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change such that discriminatory marriage rules no longer apply. Coverture exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. While celebrating the demise of coverture, however, the …

Who Wins In The Supreme Court? An Examination Of Attorney And Law Firm Influence, Adam Feldman

Marquette Law Review

Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys’ relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.

Brandeis: The Legacy Of A Justice, Joel K. Goldstein, Charles A. Miller

Marquette Law Review

One hundred years after his appointment, Justice Louis D. Brandeis remains a distinctive and unusually influential figure in the history of the Supreme Court. Unlike many other great justices, Brandeis is not remembered for his majority opinions. Rather, what is distinctive about him is the extent to which so many of his dissents and concurring opinions continue to influence justices more than 75 years after he retired and a century after he joined the Court. Whereas justices cite majority opinions for their value as legal precedents, they invoke the dissents and concurrences of a retired justice due to the power …

Protecting Common Law Rights Of The Unionized Worker: Demystifying Section 301 Preemption, Phillip Closius

University of Baltimore Law Review

Employers are frequently subject to employee lawsuits alleging a tort. Non-unionized employees may seek damages for such conduct by their employers in state court. Unionized employees, however, face the risk that employers will seek to transfer the case to a federal district court in an attempt to immunize tort liability by claiming the complaint is preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA). Although § 301 remains essentially unchanged from the date of its adoption, judicial confusion over the scope of its preemptive effect frequently has broadened an employer’s ability to defeat state tort claims …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

Miscarriage Of Justice: The Cognizability Of § 2255 Claims For Erroneous Career Offender Sentences, Matthew B. Rosenthal

Georgia Law Review

Career offender sentencing enhancements present difficult questions for courts. One of the most difficult of these questions is deciding what crimes warrant the application of these serious enhancements. Federal courts sentencing defendants often must decide, with little guidance, what offenses constitute a "crime of violent" or "violent felony." On a few occasions, the Supreme Court has stepped in and told lower courts that certain crimes do not fit within these categories, and that their interpretation of the career offender enhancement is incorrect. Often, the recognition of this misapplication of the enhancements occurs years after an individual defendant has been convicted, …

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …