Supreme Court of the United States Commons^™

Foster V. Chatman: Clarifying The Batson Test For Discriminatory Peremptory Strikes, Meghan Daly

Duke Journal of Constitutional Law & Public Policy Sidebar

Historically, peremptory challenges were thought necessary to ensure fair and impartial juries, but the tactic has also been widely used by prosecutors for racially discriminatory purposes. This Commentary previews an upcoming Supreme Court case, Foster v. Chatman, that deals with alleged discriminatory peremptory challenges which led to striking all black jurors from a jury trial. Even though the prosecution had offered race-neutral reasons for those strikes, this Commentary argues that the evidence shows that the underlying rational was, in reality, racial discrimination. For that reason, this Commentary argues that the Court should find this case to fall under the …

A Power Struggle: Demand Response And The Limits Of Ferc’S Authority, Adrien Dumoulin-Smith, Geoffrey Wright

Duke Journal of Constitutional Law & Public Policy Sidebar

This Commentary details a recent Supreme Court case which dealt with the question of the extent of a federal agency’s authority to regulate retail markets for electric power or whether the agency was restricted only to regulation of wholesale markets. In this case, the Court held that the federal agency had jurisdiction over wholesale markets, regardless of the impact in retail markets. This Commentary argues that the Court reached the correct result as a matter of statutory interpretation but also argues that the Court was insufficiently deferential to the agency in interpreting the extent of that agency’s jurisdiction under the …

Newsroom: Yelnosky On Passing Of Justice Scalia 02-24-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

On The Record: The Disastrous Decisions Of The Republican Nominees To The U.S. Supreme Court, Jana Nestlerode

Criminal Justice Faculty Publications

No abstract provided.

A Gauntlet Thrown: The Transformative Potential Of Padilla V. Kentucky, Malia Brink

Fordham Urban Law Journal

No abstract provided.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Replacing Scalia, Donald Roth

Faculty Work Comprehensive List

"Scalia was an advocate of 'principled pluralism,' the idea that we should have a society where we not only share a common cause, but we freely and vigorously express and defend our differing views."

Posting about the appointment of a new Supreme Court Justice­­­­­­­­ from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/replacing-scalia/

Neutral Principles And Some Campaign Finance Problems, John O. Mcginnis

William & Mary Law Review

This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Court’s campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at each of these levels.

As a normative matter, it argues that following …

The Right To Occupy—Occupy Wall Street And The First Amendment, Sarah Kunstler

Fordham Urban Law Journal

No abstract provided.

Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services, Fraud, And The Ill-Conceived "Clean Up Government Act", J. Kelly Strader

Fordham Urban Law Journal

No abstract provided.

Skilling: More Blind Monks Examining The Elephant, Julie Rose O'Sullivan

Fordham Urban Law Journal

No abstract provided.

Rebutting The Fraud On The Market Presumption In Securities Fraud Class Actions: Halliburton Ii Opens The Door, Victor E. Schwartz, Christopher E. Appel

Michigan Business & Entrepreneurial Law Review

In Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), the United States Supreme Court reaffirmed the validity of the “fraud on the market” presumption underlying securities fraud class action litigation. This presumption is vital to bringing suits as class actions because it excuses plaintiffs from proving individual reliance on an alleged corporate misstatement on the theory that any public statements made by the company are incorporated into its stock price and consequently relied upon by all investors. Thus, the Court’s decision to uphold the validity of the presumption has been hailed as a significant victory for those …

The Hidden Under Caste Of America: An Examination Of The Effects Of Terry V. Ohio, Florida V. Bostick, & Whren V. United States And Colorblindness On African Americans, Austin Schoeck

Political Science: Student Scholarship & Creative Works

No abstract provided.

Hurdles To The Court: The Doctrine Of Standing Under Statutory Violations, Priya Khangura

Duke Journal of Constitutional Law & Public Policy Sidebar

Standing is a precondition for any suit brought in federal court. This Commentary analyzes a Supreme Court case, Spokeo, Inc. v. Robins, which will address whether a violation of a federal statute grants a plaintiff standing to sue. The Author argues that such a violation is sufficient for establishing standing because the plaintiff suffered an injury-in-fact which the legisture intended to prevent. That harm is both traceable to the violation and redressible by statute. Thus, the requisite elements of constitutional standing exist in this case. Such a holding follows from existing standing jurisprudence and ensures that plaintiffs can have …

Arbitration Revisited: Preemption Of California’S Unconscionability Doctrine After Concepcion, David Friedman

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary looks at a Supreme Court case, Imburgia v. DIRECTV, in which the Court faces the question of whether an arbitration agreement, made pursuant to the Federal Arbitration Act, preempts state unconscionability doctrine which would render that agreement unenforceable. The Author argues that holding that federal law implementing a policy favoring arbitration fully preempts state law doctrines from preventing the enforcement of arbitration agreements.

Luis V. United States: Asset Forfeiture Butts Heads With The Sixth Amendment, Jordan Glassberg

Duke Journal of Constitutional Law & Public Policy Sidebar

In recent years, the federal government has vastly increased its use of asset forfeiture, the seizure of property connected to illegal activities. As authorized under federal law, the government is also able to restrain assets prior to trial when the government belives those assets will ultimately be found to be forfeitable. This pretrial restraint potentially implicates the constitutionally guaranteed right to counsel for criminal defendants. In the upcoming Supreme Court case of Luis v. United States, the Court will address the question of whether a pretrial restraint of assets which are not traceable to any illegal activity is permissible …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Pepperdine Law Review

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court …

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Petitioners, Steven T. Collis, Michael Robertson, Adam A. Hubbard, Douglas Laycock, Gerard V. Bradley, Richard W. Garnett, Kristine J. Kalanges

Court Briefs

No. 15-862
Stormans, Inc. v. John Wiesman

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

From the Summary of Argument

This Court’s free-exercise jurisprudence is defined by two cases with facts at opposite ends of a continuum. The Court decided them a quarter century ago, and it has provided no further guidance despite a growing circuit split. Lower courts that carefully examined this Court’s opinions found a clear rule that governments must treat religious conduct as well as they treat analogous secular conduct—or face strict scrutiny. But that rule has …

The (Perhaps) Unintended Consequences Of King V. Burwell, Kristin E. Hickman

Pepperdine Law Review

The Supreme Court’s decision in King v. Burwell surprised many people, not because of its outcome but because, even as the Court ultimately agreed with the IRS’s interpretation of the statute, the Court expressly denied the IRS Chevron deference. As regards that result, this Essay makes three points. First, the Chevron discussion in King was not incidental, but the IRS and taxes were not foremost on the Court’s mind. Rather, King reflects a careful effort by Chief Justice Roberts to accomplish, through alternative framing, a broader curtailment of Chevron’s scope that he advocated unsuccessfully two terms earlier in City of …

Millennials, Equity, And The Rule Of Law: 2014 National Lawyers Convention, How First Amendment Procedures Protect First Amendment Substance, Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David R. Stras

Catholic University Law Review

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation.

The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits …