Courts Commons^™

The Taxing Ambiguity: Defining "Return" In Bankruptcy Dischargeability Cases, Elizabeth Tsai

Cleveland State Law Review

This Note examines the circuit split over the dischargeability of tax debts tied to late-filed returns, which has led to inconsistent bankruptcy outcomes and inequitable treatment of debtors across jurisdictions. Some courts, adopting the strict “one-day-late” rule, hold that any tax return filed even a single day past its deadline is not a “return” for bankruptcy discharge purposes, permanently barring relief. Others apply a more flexible standard grounded in the Beard test, considering a debtor’s good-faith compliance efforts. This inconsistency contradicts the fresh start principle of bankruptcy law, disproportionately harms low-income debtors, and fails to serve the government’s tax collection …

The Fallacies Of Originalism: Why Treating History And Tradition Alone As Dispositive Is Not Superior To The Tiers Of Scrutiny, Gage A. Johnson

Cleveland State Law Review

The goal of this Article is to develop the current history and tradition standard. I argue that the Bruen use of history and tradition is not a more principled or better way of interpreting the Constitution than the infamous tiers of scrutiny. This argument is supported by analyzing the way the Court has used history and tradition in reviewing restrictions on the Second Amendment and the push for it to be used under the First Amendment. I argue that Justice Thomas’s rigid application of history and tradition is essentially an ends-justifying-the-means analysis that is no different than the so called …

The Second Amendment Right To Bear Arms, Or Lack Thereof: Assessing The Prohibition Of Unlawful Immigrants From Possessing Firearms, Anna Egensperger

Et Cetera

This Note looks at the hot button issue of whether unlawful immigrants should have the constitutional right to bear arms. Thus far, the Circuit Courts have come to different conclusions which require the input of the United States Supreme Court. Although intertwined with political views, this Note attempts to take a non-partisan stance which prioritizes the application of case law and a consistent reading of the Constitution. To provide the full context of this issue, this Note begins by describing the facts and holding of Columbia v. Heller which creates the first test for establishing a right protected under the …

Authentication Of Art, Herbert I. Lazerow

Cleveland State Law Review

The authentication of items permeates our law and our markets. While it is important for many consumer goods, authentication is crucial for artworks and artifacts where the value difference between the authentic and the inauthentic is huge. The question is raised most frequently in conflicts between buyer and seller of art where it is claimed that a warranty was breached, or between the owner of artwork and an authenticator where the claim sounds in tort. It also arises in any situation where the value of the art is important, such as tax or antitrust. Authentication of artwork can be difficult …

The Second Amendment, Illegal Aliens, And The Bruen Test: Defending The Constitutionality Of 18 U.S.C. § 922(G)(5), Ian Duncan

Cleveland State Law Review

This Note examines the constitutionality of 18 U.S.C. § 922(g)(5), which prohibits unlawful aliens from possessing firearms, under the Supreme Court’s text-and-history framework announced in New York State Rifle & Pistol Ass’n, Inc. v. Bruen and developed further in United States v. Rahimi. In the wake of Bruen, lower courts have fractured over how strictly to demand historical analogues and how to treat longstanding status-based restrictions in § 922, including prohibitions on possession by felons, domestic-violence offenders, and noncitizens. Against that backdrop, this Note argues that § 922(g)(5) is constitutionally sound.

Part I traces the development of Second …

Penegakan Peraturan Lalu Lintas Dan Kepatuhan Terhadapnya (Dengan Minat Khusus Kota Jakarta), Soerjono Soekanto

Jurnal Hukum & Pembangunan

Abstract

Brief Of Notre Dame Education Law Project, Notre Dame Program On Church, State & Society, And Lindsay And Matt Moroun Religious Liberty Clinic Amici Curiae In Support Of Petitioners, Richard W. Garnett, Nicole Stelle Garnett, John A. Meiser

Court Briefs

No. 25-802
Foothills Christian Ministries v. Kim Johnson

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

The First Amendment guarantees religious institutions the power to conduct their internal affairs. Our Lady of Guadalupe School v. Morrissey- Berru, 591 U.S. 732, 746 (2020). See also Cath. Charities Bureau, Inc. v. Wisconsin Lab. & Indus. Review Comm'n, 605 U.S. 238, 249 (2025); id. at 255 (Thomas, J., concurring). This principle of self-governance, known as the church autonomy doctrine, is an essential feature of the Constitution’s …

The Business Bankruptcy “Big 3” And The Unanticipated Benefits Of Subchapter V, Marshall V. Ringwood

BYU Law Review

The liberal bankruptcy venue rules in the United States have their defenders and advocates. Subchapter V of the Bankruptcy Code came into effect in 2020, justified as a bipartisan solution to a longstanding problem in corporate bankruptcy where restructuring under Chapter 11 was prohibitively expensive for small-business debtors. On June 21, 2024, Subchapter V’s extended debt limit of $7,500,000 in liabilities reverted back to a statutorily defined $3,024,725. In addition to the justifications offered by organizations such as the American Bankruptcy Institute (ABI) for both Subchapter V, generally, and a permanent increase to its debt limit, I argue that Subchapter …

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

BYU Law Review

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

Medical Device Dangers: Choosing Ignorance In The Courts And At The Fda, George Horvath

William & Mary Law Review

Medical devices save lives and improve well-being but have caused as many as 83,000 deaths and 1.7 million injuries in a recent decade. Decisions of critical importance—patients’ decisions whether to have a device implanted, doctors’ decisions about which device to use, insurers’ decisions whether to reimburse for those devices—depend on information about risk that is provided by manufacturers. But producing this information is costly. Injured patients, through private lawsuits under state products liability theories, can incentivize device manufacturers to incur these costs and to produce and disclose information about device risk. Unfortunately, courts are making it increasingly unlikely that this …

Is History Precedent?, Allison Orr Larsen

Faculty Publications

It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article “historical precedents”—meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for …

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Publications

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Reflections On Judicial Supervision Of Prosecutorial Powers, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The courts occasionally claim that the limits to the power to prosecute are different from the limits to other executive powers. They say that prosecutorial decisions are subject to judicial review on a reduced set of grounds compared to other executive decisions. I have previously argued that this approach is wrong, and aim to elaborate on the argument in this blog post. The focus will be on the laws of the UK and of Singapore, but it is hoped that the reflections here will be of some use in other common-law jurisdictions as well.

The Bankruptcy Judge And The Generalist Tradition, Alexander Gouzoules

BYU Law Review

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging.

This Article also reflects on contemporary developments—most notably the rise …

Reliance, Misplaced: Restoring The Text Of The Antifraud Provisions Of The Federal Securities Laws In Sec Enforcement Actions, Christopher R. Mills

University of Miami Business Law Review

The antifraud provisions of the federal securities laws are statutory sledgehammers. Those who violate them can face severe sanctions, including ruinous monetary penalties and others that can effectively bar firms and individuals from the securities industries. The Securities and Exchange Commission is authorized to enforce these provisions with the full weight of the federal government. And the SEC does so vigorously.

Even though the antifraud provisions target fraud, for decades lower courts and the Commission have held that the Commission can establish violations of them without any evidence that anyone was misled. They have done so by concluding that, unlike …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

The Role Of The U.S. State Department As An Amicus In Foreign Policy Abstention Analysis, Sarah Kurpius

Northwestern University Law Review

Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.

This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the …