Supreme Court of the United States Commons^™

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

American Common Market Redux, Richard Collins

Publications

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici …

Accountability For Employers Or Independence For Contractors? Accomplishing Ab5’S Labor Classification Goals In The Gig Economy, Chelsea Rauch

Seattle University Law Review

U.S. employment law traditionally classifies workers as either employees or independent contractors; each worker under this traditional legal rubric can only be classified as one or the other—there can be no ambiguity or overlap. An employee is generally defined as “a person hired for a regular, continuous period to perform work for an employer who maintains control over both the service details and the final product.” In contrast, an independent contractor is generally defined as “a worker who performs services for others, usually under contract, while at the same time retaining economic independence and complete control over both the method …

The Small-Er Screen: Youtube Vlogging And The Unequipped Child Entertainment Labor Laws, Amanda G. Riggio

Seattle University Law Review

Family vloggers are among the millions of content creators on YouTube. In general, vloggers frequently upload recorded videos of their daily lives. Family vloggers are unique because they focus their content around their familial relationships and the lives of their children. One set of family vloggers, the Ace Family, has recorded their children’s lives from the day they were born and continue to upload videos of each milestone, including “Elle Cries on Her First Rollercoaster Ride” and “Elle and Alaïa Get Caught Doing What!! **Hidden Camera**.” Another vlogging couple, Cole and Savannah LaBrant, post similar content, including videos titled “Baby …

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

The Confusion Of Mcdonnell Douglas: A Path Forward For Reverse Discrimination Claims, Christian Joshua Myers

Seattle University Law Review

It is no secret that Title VII of the Civil Rights Act of 1964 is one of the most significant pieces of legislation ever passed by the United States Congress. Fiercely debated and enacted during the Civil Rights Movement of the 1960s, Title VII prohibits employers from engaging in various forms of discrimination within the workplace. For instance, employers may not unlawfully consider race, color, religion, sex, or national origin in employment decisions. Given Bostock v. Clayton County’s recent extension of Title VII’s protections to lesbian, gay, bisexual, transgender, and queer workers, this Article posits that evaluating Caucasian workers’ “reverse …

The Corporation As Trinity, David Skeel

Seattle University Law Review

This Symposium Article takes Adolf Berle's cue in several respects. Most importantly, it will look to Augustine for guidance in developing insights into the nature of the corporation—in particular, corporate personhood. Where Berle drew inspiration from The City of God, this Article looks to a different Augustinian masterpiece, The Trinity, which has played a pivotal role in Christians’ understanding of who God is. Christian theology, as brilliantly explicated in The Trinity, states that God consists of three different persons—the Father, the Son, and the Holy Spirit—but is a single divine being. This Article argues that corporate personhood has similar qualities …

Requiem For A Lightweight: How Ncaa Continues To Distort Antitrust Doctrine, Alan J. Meese

Faculty Publications

The Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars, and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the rule of reason because they produced significant economic harm without offsetting benefits. In so …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron

Scholarly Works

No abstract provided.

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Why A Federal Wealth Tax Is Constitutional, Ari Glogower, David Gamage, Kitty Richards

Articles by Maurer Faculty

The 2020 Democratic presidential primaries brought national attention to a new direction for the tax system: a federal wealth tax for the wealthiest taxpayers. During their campaigns, Senators Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) both introduced proposals to tax the wealth of multimillionaires and billionaires, and to use the revenue for public investments, including in health care and education. These reforms generated broad public support—even among many Republicans—and broadened the conversation over the future of progressive tax reform.

A well-designed, high-end wealth tax can level the playing field in an unequal society and promote shared economic prosperity.

Critics have …

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Offensive Mark Owners Have An Enforcement Problem, Yvette Joy Liebesman

All Faculty Scholarship

In Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for "immoral" or "scandalous" marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner’s First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court’s seminal holding of Shelley v. Kraemer illustrates …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Nestlé United States, Inc. V. Doe. 141 S. Ct. 1931 (2021), Desiree Leclercq

Scholarly Works

On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) 1 for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court’s treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.

Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger

Faculty Scholarship

As two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.

This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure and federal …

The Two Percent: How Florida’S Capital Punishment System Defies The Eighth Amendment, Sofia Perla

FIU Law Review

No abstract provided.