Courts Commons^™

The Fall From Standing: How The Courts Have Diverged From Financial Standing Standards, Shouatshen Adoree Yang

Brooklyn Law Review

The Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete …

Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie

Brooklyn Law Review

In recent years, the Supreme Court of the United States has recognized limitations on the adjudicatory authority of the bankruptcy judge in certain contexts. In the face of this seeming erosion in the previously presumed power of the bankruptcy judge, the time is ripe to consider areas in which a bankruptcy judge’s adjudicatory authority may be further challenged. Inherent civil contempt power is one such area. Contempt power in the bankruptcy context has been murky since the creation of the non-Article III bankruptcy court in 1978. While today, courts generally agree that bankruptcy judges possess (at least some) inherent civil …

Conflicting Canons Of Construction: The Aftermath In Veterans’ Law, Carlissa R. Carson

Brooklyn Law Review

Until June 28, 2024, when the United States Supreme Court overturned decades of administrative law precedent, veterans' law judges, veterans, and practitioners alike would gather in the administrative law arena to watch an unpredictable battle: Chevron vs. Gardner. The outcome of bouts between these heavyweights was as unexpected as the plot twist in an M. Night Shyamalan film. As a result, our nation’s veterans were defeated. Federal courts tended to apply either Chevron (agency deference) or Gardner (veteran friendliness) and courts rarely mentioned both canons of construction in the same opinion. It was difficult to predict which canon of construction …

Bowe V. United States: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Leah Litman, Eve Brensike Primus

Appellate Briefs

Amici curiae are law professors who research, study, teach, and write about the writ of habeas corpus and federal postconviction relief. They share an interest in seeing habeas law applied in a way that ensures the just adjudication of claims.

Challenging Race-Based Health Care Discrimination: A New Private Right Of Action, Aaron Pinkett

Northwestern University Law Review

The Hippocratic Oath calls on doctors to “do no harm.” Yet we know from extensive public health research that clinicians repeatedly cause harm to Black patients by dismissing their medical concerns, misdiagnosing them, and undertreating their pain. These practices of differential treatment for Black patients have led to steadily increasing racial disparities in health care outcomes throughout the United States. Title VI of the Civil Rights Act of 1964 prohibits this type of disparate impact, but modern Supreme Court jurisprudence forecloses opportunities for affected parties to seek legal relief—despite the clearly established legislative intent of Title VI. However, another legal …

The Renaissance Of Private Law, Yotam Kaplan, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent …

Hindsight Is 20/20: Epilepsy Is Not One-Size-Fits-All, Raika Kim

Northwestern University Law Review

For many, epilepsy is one of the first conditions that come to mind when thinking of a disability, and for good reason: over 50 million people in the world live with epilepsy. Yet misunderstandings about epilepsy have perpetuated social stigma surrounding the disability for centuries. Ableist beliefs led to the passage of laws in the 1900s condoning—and in some cases, requiring—sterilization of individuals with epilepsy and restriction of their right to marry. Even today, state driving laws, justified as promoting public safety, categorically prevent anyone diagnosed with epilepsy from driving unless they are seizure free for an arbitrary, nonuniform period …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Plaintiff-Appellant's Opening Brief, Amy V. Doukoure, John A. Meiser, Meredith H. Kessler, Domenic A. Canonico

Court Briefs

No. 24-2003
Marvin Owens v. Gary Schuette

On Appeal from the United States District Court for the Eastern District of Michigan Case No. 2:24-cv-10787

From the Summary of the Argument

This appeal requires the Court to correct an error below—derived from a recently abrogated error in this Court’s own precedent—that denies the full remedial protections enacted to safeguard religious exercise under RLUIPA. The only question is whether RLUIPA allows courts to award damages against counties and their officials. The only answer—especially following the Supreme Court’s unanimous interpretation of an identical provision in RFRA—is yes.

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents: Mahmoud V. Taylor, Catherine E. Smith, Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance

Scholarly Articles

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

Standards For Imposition Of Discovery Sanctions, Maine Law Review

Maine Law Review

The adoption of the Federal Rules of Civil Procedure in 1938 marked a major change in the theory of the trial system in the federal courts. The new procedures of the Rules were designed to eliminate disposition of cases based on technical errors and encourage resolution on the merits of each controversy. The pleading rules were greatly simplified and full discovery provisions were incorporated to inform the parties regarding the basis of each adversary's claim or defense and to provide greater access to evidence bearing on the dispute. The optimal use of pre-trial discovery under the Rules, however, depends upon …

Attorneys And Subornation Of Perjury, Maine Law Review

Maine Law Review

Federal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not …

Modalities, Anti-Modalities, And The Social Psychology Of Persuasive Constitutional Argument, Asma T. Uddin

Catholic University Law Review

Constitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity. The paper examines how these strategies can …

The Final Frontier Of Federal Power: Understanding, Defining, And Enforcing “Necessary And Proper” To Enhance The General Welfare And Limit Federal Power, Thomas Ralph

Catholic University Law Review

This comment explores the long and inconsistent history of the Necessary and Proper Clause and its unique role as both a grant of power to Congress and a limit on the outer reach of the federal government. The federal government is in theory one of limited powers; however, this promise of the Constitution cannot be truly recognized without developing a robust framework for applying the Necessary and Proper Clause as a reliable source of federal power. After establishing the need for a framework, this comment provides five judicial decision rules that can be applied by trial and appellate courts to …

The Law Of Disqualification And Problems With The Supreme Court Code Of Conduct, Donald K. Sherman, Marco A. White, Virginia Canter

Fordham Law Voting Rights and Democracy Forum

In this Article, we analyze the federal disqualification statute applicable to federal judges, magistrates, and Justices of the Supreme Court as compared to the disqualification provisions of the United States Supreme Court Code of Conduct and detail the ways in which the standards contained within the Code are contrary to law and history. To provide proper context, we examine the history, case law, and statutory framework that have created the current standards of judicial disqualification for all Article III judges and Justices. We demonstrate that the Court is bound to apply disqualification procedures in accordance with the United States Constitution, …

Application For Leave To File Amicus Curiae Brief In Support Of Petitioners; Amicus Curiae Brief, Myriam E. Gilles

Amicus Briefs

Amici curiae are law professors who teach and write about the function and role of state and federal courts. Because Amici have substantial expertise in the history, practices, and workings of courts, Amici submit this brief in the hope of being of assistance to this Court in its deliberation.

Roger Williams University Law Review Symposium: Trauma-Informed Lawyering: Approaches To Advocating For Diverse Populations 11-15-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review

Maine Law Review

The extent to which the Supreme Court's summary dispositions of appeals are entitled to precedential weight presents a serious problem for lower courts confronted with cases involving issues similar to those previously disposed of in a summarily decided appeal. A recent source of confusion in this area was the Supreme Court's 1975 opinion in Hicks v. Miranda. In Hicks, the lower court held a California statute unconstitutional despite the fact that one year earlier the Supreme Court had summarily dismissed an appeal from a decision upholding the constitutionality of the same statute., The Supreme Court reversed, pointing out that its …