Supreme Court of the United States Commons^™

Inconclusive History, Allen Roston

Faculty Works

No abstract provided.

What Is Trump Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly …

White Christian Nationalism & Antisemitism: A True Threat, Doron Kalir

FIU Law Review

The ideology of Jewish hatred, also known as antisemitism, has deep roots. In the United States, antisemitism has known a long and complicated history; in the early 1940s, it reached peak levels. Now, more than 80 years later, antisemitism again rears its ugly head, aiming to end the Golden Age of American Jewry. The exclusionary ideology aiming to obliterate the wall separating Church and state, and to institutionalize Christian identity and values into the public square, also known as White Christian Nationalism, has deep roots. In the United States, it had a long and complicated history; by the mid 1920s, …

The Ethical Dilemma Of The Highest Court: Could Congress Constitutionally Impose A Binding Code Of Ethics On The United States Supreme Court?, Amys Serret

FIU Law Review

In response to mounting ethical concerns about Supreme Court Justices, the Court introduced its own Code of Conduct in November 2023, likely prompted by recent controversies involving Justice Clarence Thomas. This code aimed to dispel the public perception that Supreme Court Justices operate without ethical boundaries. The code mirrors the Code of Conduct for United States Judges, established in 1973, outlining ethical rules and principles for the Justices. It shares the same five canons and includes most provisions from the lower federal judges’ code, albeit with some differences. Although the Court’s ability to establish its own code is unquestioned, this …

Electing The Supreme Court, Dmitry Bam

FIU Law Review

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

On Guido Calabresi, Roger K. Newman

Touro Law Review

Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …

On Becoming And Being A Criminal Defense Attorney, Steven B. Duke

Touro Law Review

Steven B. Duke grew up in a tiny farming community in Arizona. In college, he experienced injustice during an encounter with the police and decided to attend law school. As a result of his success at the University of Arizona Law School, Duke was offered a clerkship with Justice William O. Douglas for the 1959-60 Supreme Court term. As Duke describes in this article, working for Justice Douglas was a rewarding and demanding experience. Douglas, probably the most liberal Justice ever to serve on the Supreme Court, had a dazzling intellect and wrote many books on all manner of subjects. …

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

Scholarly Articles

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

The Excluded: Where Did Our Rights Come From, Who Paid The Price Trying To Establish Them, And Who Is Trying To Take Them Away? The Centuries-Long Struggle For Inclusion, Jim Brosnahan

University of San Francisco Law Review

No abstract provided.

The Whiteness Of Wealth & Black Student Loan Debt, Renee Nicole Allen

Faculty Publications

On June 30, 2023, to the dismay of many anxious borrowers, the Supreme Court held that the Secretary of Education did not have the authority to cancel roughly $430 billion in federal student loan balances, thus blocking President Biden’s plan for student loan forgiveness. Despite authority delegated to the Secretary to waive or modify provisions of the Education Act to ensure low-to-middle income borrowers were not placed in a worse financial position because of the COVID-19 national emergency, the Court rejected the forgiveness plan and borrowers resumed payments in October 2023. Anti-Black racism in federal law and policy have contributed …

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Restoring Unanimity To The Alabama Death Penalty, Daniel Butler Friedman

Articles & Chapters

In Alabama, one of the jurisdictions most responsible for executions in the United States, the death penalty statute contains a very unusual provision: juries can sentence defendants to death even if they are not unanimous. This is a surprising fact to many people, including lawyers, who largely believe that the U.S. Supreme Court eliminated non-unanimous juries in 2020. That provision is enormously important to the capital punishment regime in Alabama, where 80% of people on death row were sentenced non-unanimously. The law's history, however, is poorly understood. This article lays out that history, showing it to be part of the …

When Is Free Speech “Beyond” The Constitution?, Abner S. Greene

Faculty Scholarship

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. …

Reproductive Rights: How Voting Behavior Illustrates Shifting Political Attitudes, Keavy Callwood

Williams Honors College, Honors Research Projects

This research project intends to explore a causal link between the Supreme Court decision in Dobbs v. Jackson Women's Health Organization (2022) and shifting political attitudes as modeled through voting behaviors. Research will be conducted by using data from government and reputable sources that are representative of the general public to show that political attitudes have shifted since the release of the Dobbs decision. Additionally, the question will be analyzed through discussing several political theories and applying them to the current issues being studied. This research could help show how the Supreme Court is an important actor in the political …

Supreme Court's Impact On Educational Equity, Olivia May

Williams Honors College, Honors Research Projects

This research will review each case to discover how the Court's opinion on equal opportunities in educational spaces has changed. The main question this research will assess is how the Supreme Court will remain a change agent for educational equity over time. There has been a relevant discussion about the Supreme Court Justices remaining unbiased in their decisions. With the Court's current makeup being the most conservative-leaning Justices, it is important to dissect if ideology really comes into play in their decisions. Analyzing this through educational equity cases is important due to the factors mentioned above about the importance of …

An Analysis Of The Constitutionality Of Florida's 2024 Hb 3: “Online Protections For Minors,” Comparative To Other State Regulations Of The Internet, Evan J. Siegel

Honors Undergraduate Theses

This thesis examines the constitutionality of the Florida House of Representatives’ 2024 priority bill, HB 3: “Online Protections for Minors,” through its ongoing litigation in North Florida. The broad nature of the bill, which is now Florida law, and its burden on accessing constitutionality protected speech and/or expression may not be consistent with the First and Fourteenth Amendments to the United States Constitution. How the law defines and shapes what material may be accessible to people on the Internet, or the means they would need to use to create a social media account, are questions many other courts have begun …

You Had One Job: The Supreme Court's New Chance To Fix The Constitutional Law Of Sentencing Factfinding, Benjamin J. Priester

Faculty Articles

Four decades after the enactment of the federal Sentencing Reform Act, one might expect a settled consensus to have emerged addressing the constitutional constraints on implementing norms such as predictability, consistency, and uniformity in the imposition of criminal punishment in the United States. In reality, the United States Supreme Court has failed to provide stability or clarity in the doctrinal principles implicated in millions of criminal cases nationwide. Spanning a quarter century, the Apprendi v. New Jersey line of cases has featured narrow or fragmented majorities, significant concurring opinions, and multiple instances of individual justices either overtly admitting to changing …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

The Doors Of Janus: A Critical Analysis Of The Socio-Technical Forces Eroding Trust In The Rule Of Law, Anuj Puri, Esther Keymolen

Cardozo Arts & Entertainment Law Journal

The Rule of Law is neither just a principle nor solely the institutions that embody that principle, a critical aspect of the Rule of Law is its grounding in trust which often gets neglected in the surrounding discourse. When the citizens' trust in the Rule of Law weakens, the Rule of Law becomes fragile. In this article we examine the impact of emerging technologies on the citizens' trust in the Rule of Law. Our analysis is specifcally focused on the effect of systemic disinformation which is likely to worsen with the advent of Generative AI, algorithmic misgovernance, and the digitalization …

The Sword, The Purse, And The Pen: The Constitutional Conundrum Of Impoundment, William N. Chance

CMC Senior Theses

This Thesis explores the constitutional conundrum of executive impoundment, the practice by which the President of the United States withholds or delays the expenditure of funds appropriated by Congress. Although impoundment has deep historical roots dating back to the Constitution’s Framers, its modern use raises profound questions regarding our separation of powers. This Thesis establishes a functional framework that distinguishes between “routine” impoundments, which promote administrative efficiency, and “policy” impoundments, which may undermine congressional intent. Furthermore, after tracing the development of impoundment from the early Republic through the Nixon Administration and the passage of the Impoundment Control Act of 1974, …

The Erie Scoop, Barry Cushman

Journal Articles

APRIL 25, 1938 WAS A BUSY DAY at the Supreme Court of the United States. The Court decided twelve cases by full opinion and six cases per curiam, granted certiorari in two cases and denied it in twenty-eight others, and denied two petitions for rehearing. The decision that received the most attention sustained a challenge to a directive of Secretary of Agriculture Henry A. Wallace setting maximum rates to be charged by commission men working at the Kansas City Stockyards. The Court found that the regulated parties had not been afforded a “full,” “fair and open hearing” before the rate …

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …