Supreme Court of the United States Commons^™

With Great Power Comes Ignored Responsibility: How The Supreme Court Failed To Save Spider-Man, Maya Zagayer

Loyola of Los Angeles Law Review

No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

Articles

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the …

Normalizing "Erie", Suzanna Sherry

Vanderbilt Law Review

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous …

Supreme Court Repeaters, Jason Iuliano, Ya Sheng Lin

Vanderbilt Law Review

A case that receives cert once is special. A case that receives cert twice is truly exceptional. This Article is the first to examine the phenomenon of "Supreme Court Repeaters." Although Repeaters may seem like mere curiosities, they are actually a valuable part of the Supreme Court's docket. Our analysis reveals that the Justices use Repeaters in three ways: (1) to set up important substantive questions that could not be addressed on the first pass, (2) to supervise lower courts, and (3) to address different substantive issues that arise at distinct points in litigation. In this Article, we investigate Supreme …

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Faculty Publications

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

Restoring Chevron'S Domain, Jonathan H. Adler

Faculty Publications

For some three decades, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. has stood at the center of administrative law. Although Chevron may have been somewhat "accidental," Chevron has been among the most important and consequential administrative law decisions of all time. It is, according to Cass Sunstein, a "foundational, even a quasi-constitutional text" in administrative law.

Foundational or not, Chevron's domain is under siege. In recent years, commentators have raised doubts about the doctrine's continued vitality and ultimate desirability. Indeed, some have suggested Chevron should be ditched altogether - if not by the courts, then perhaps by Congress. …

The Senate Has No Constitutional Obligation To Consider Nominees, Jonathan H. Adler

Faculty Publications

[After Justice Antonin Scalia's death in 2016 and i]n response to the Senate Republican leadership's stated intention to refuse to consider any nominee to replace Justice Scalia, some began to argue that the Senate has a constitutional obligation to act on a Supreme Court nomination.

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but "clear." This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all …

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

The Government Brand, Mary-Rose Papandrea

Northwestern University Law Review

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the U.S. Supreme Court held that Texas could deny the Sons of Confederate Veterans a specialty license plate because the public found the group’s Confederate flag logo offensive. The Court did not reach this conclusion because it deemed the Confederate flag to fall within a category of unprotected speech, such as true threats, incitement, or fighting words; because it revisited its determination in R.A.V. v. City of St. Paul that restrictions on hate speech are unconstitutional; because travelers who see the license plates are a “captive audience”; or because …

My Turn: 'We The People' And The Garland Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Because I teach constitutional law, a friend recently asked me whether Judge Merrick Garland or President Obama might successfully sue to compel the Senate to take action on the nomination of Judge Garland to fill the vacancy on the United States Supreme Court.

Almost certainly not, I told him. Under settled precedent, a judge would dismiss such a case as raising a non-legal ''political" question. It would be very difficult to develop acceptable decisional standards for such a claim. Moreover, courts are reluctant to entertain lawsuits challenging mechanisms that the Senate uses to oversee the judiciary."

Justice Holmes, Natural Law, And The Supreme Court, John J. Regan, C.M.

The Catholic Lawyer

No abstract provided.

2016-2017 Supreme Court Preview: Schedule And Panel Members, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Immigration Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: Business, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: The Court And The 2016 Election, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Civil Rights And Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Pena-Rodriguez V. Colorado, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.