Supreme Court of the United States Commons^™

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.

U.S. Supreme Court Surveys: 2016 Term. Murr. V. Wisconsin: Identifying The Proper "Parcel As A Whole" In Regulatory Takings Cases, Bruce I. Kogan

Law Faculty Scholarship

No abstract provided.

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades Of Litigation Under The Fair Housing Act And The Supreme Court Still Can't Say For Sure Who Is Protected, David A. Logan

Law Faculty Scholarship

No abstract provided.

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Perpetual "Invasion": Past As Prologue In Constitutional Immigration Law, Matthew J. Lindsay

Roger Williams University Law Review

No abstract provided.

Black Swan Reconfiguration: Legal Separation Of American Powers, Steven Ferrey

Suffolk University Law School Faculty Works

In a legal Black Swan event, the Supreme Court, in an unprecedented action, stayed and blocked implementation of the Obama Administration’s core domestic and international agenda — years before a legal challenge to the regulation would ever reach the highest Court. This decision underscores major changes in the legal separation of U.S. governmental powers, and alters long-standing Chevron deference to the executive branch.

The Clean Power Plan served as the foundation of the Obama Administration’s goal to reduce climate-warming gas emissions from power plants. It provided the legal mortar cementing the U.S. commitment to the 2015 International Paris Agreement on …

Mind The Gap: Supreme Court Contraction Of Legal Discretion For The Executive Branch, Steven Ferrey

Suffolk University Law School Faculty Works

The Supreme Court, for the first time, elevated economic calculation to function as the fulcrum leveraging and allocating law-making power between the branches of government.

The federal agency regulation before the Supreme Court was estimated by the agency to impose approximately $9.6 billion in costs annually on the U.S. economy, to realize direct public benefits of $4-5 million annually. This is approximately a 2,000:1 negative cost/direct benefit ratio, before counting indirect ‘co-benefits.’ There is now new pressure to “change the math” by which the agency performs the now-required cost consideration. Incidental ‘co-benefits,’ if allowed to be considered, change the result. …

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

The First Queer Right, Scott Skinner-Thompson

Publications

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

Five Little Lessons In Lawyering From Thurgood Marshall, Ross E. Davies

Oklahoma Law Review

No abstract provided.

Can The President Control The Department Of Justice?, Bruce A. Green

Faculty Scholarship

No abstract provided.

One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The Court's most recent major property law case, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), tackles one of the thorny, recurring issues in regulatory takings jurisprudence: what is the proper “denominator” to use in determining whether a government regulation has so greatly diminished the economic value of a parcel of land that it effects a taking? More specifically, Murr looked at what constitutes the “parcel as a whole” when a landowner holds title to two contiguous lots. Should a court assess the economic impact on the value of each lot separately or the impact on the value of the …

Obergefell Liberates Bathrooms, Ayana Osada

NYLS Law Review

No abstract provided.

The "Scourge" Of Armed Check Fraud: A Constitutional Framework For Prohibited Possessor Laws, Jeffrey Giancana

University of Michigan Journal of Law Reform

Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Faith-Based Emergency Powers, Noa Ben-Asher

Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument …

A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel

Faculty Scholarship

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …