Supreme Court of the United States Commons^™

Reining In The Purcell Principle, Richard L. Hasen

Florida State University Law Review

No abstract provided.

Data Breaches, Identity Theft And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits, Bradford Mank

Faculty Articles and Other Publications

In data breach cases, the lower federal courts have split on the question of whether the plaintiffs meet Article III standing requirements for injury and causation. In its 2013 decision Clapper v. Amnesty International USA, the Supreme Court, in a case involving alleged electronic surveillance by the U.S. government’s National Security Agency, declared that a plaintiff alleging that it will suffer future injuries from a defendant’s allegedly improper conduct must show that such injuries are “certainly impending.” Since the Clapper decision, a majority of the lower federal courts addressing “lost data” or potential identity theft cases in which there is …

Obergefell'S Missed Opportunity, Catherine Smith

Scholarly Articles

Part I of this article delineates the harms to children from marriage bans, harms that the Obergefell Court relied upon to recognize the fundamental right to marry for same-sex couples. Part II explains how Obergefell missed an opportunity to advance the constitutional rights of children by failing to invoke well-established equal protection law. This discussion briefly catalogues the omitted child-centered cases that warranted a more robust analysis of children's rights. This series of cases begins with the Brown v. Board of Education decision, and then turns to a number of post-Brown equal protection cases that explicitly prohibited state practices that …

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Florida State University Law Review

Many of the Supreme Court’s important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are “contingent” constitutional determinations: the Court’s conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts—particularly in the realm of campaign finance—require reform as well.

Stare decisis purportedly insulates the Court’s purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, in contrast, …

Supreme Court Of The United States, October Term 2016 Preview, Georgetown University Law Center, Supreme Court Institute

Supreme Court Overviews

No abstract provided.

Obergefell And The "New" Reproduction, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

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

Faculty Publications

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument 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 nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

The Supreme Court Acknowledges Congress’ Authority To Confer Informational Standing In Spokeo, Inc. V. Robins, Bradford Mank

Faculty Articles and Other Publications

The Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins does not fully resolve when an intangible injury such as a defendant’s misreporting of a plaintiff’s personal information is sufficient to constitute a “concrete injury” for Article III standing. However, the Spokeo decision makes clear that Congress has a significant role in defining intangible injuries for Article III standing beyond what was considered an injury under the American or English common law. Some commentators had thought Spokeo might overrule the Court’s prior decisions in Akins and Public Citizen, which both held that a plaintiff may have standing based solely upon …

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Justice Stevens And Securities Law, Lyman P.Q. Johnson, Jason A. Cantone

Scholarly Articles

In this Article, we tell the overlooked story of Justice Stevens's important role in Supreme Court securities law decisions. In Part I, where we briefly highlight Stevens's career before his 1975 appointment to the Supreme Court, we observe that we can identify no evident interest in or connection to federal securities law or the securities industry, making his contributions all the more remarkable. The only foreshadowing of his prolific opinion-writing on the subject of securities law was his voluminous writing of opinions, in general, while serving on the Seventh Circuit Court of Appeals. This commitment to authoring opinions stemmed, in …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Dynamism In U.S. Pleading Standards: Rules, Interpretation, And Implementation, Jeffrey E. Thomas

Book Chapters

No abstract provided.

Soundings And Silences, Laurence H. Tribe

Michigan Law Review Online

My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence …

The Court And The Cannonball: An Inside Look, Lee Levine, Stephen Wermiel

American University Law Review

No abstract provided.

My Body Is My Temple: Utilizing The Concept Of Dignity In Supreme Court Jurisprudence To Fight Sex Reassignment Surgery Requirements For Recognition Of Legal Sex, Doran Shemin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Out Of Touch: Shelby V. Holder And The Callous Effects Of Chief Justice Roberts’S Equal State Sovereignty, 49 J. Marshall L. Rev. 751 (2016), Adam Bolotin

UIC Law Review

No abstract provided.

The Call And The Response: The Call, The 1991 Open Letter From Federal Judge A. Leon Higginbotham, Jr., And The 25 Years Of Response From Justice Clarence Thomas, 49 J. Marshall L. Rev. 925 (2016), Angela Mae Kupenda

UIC Law Review

No abstract provided.

Implicit In The Concept Of Ordered Liberty: How Obergefell V. Hodges Illuminates The Modern Substantive Due Process Debate, 49 J. Marshall L. Rev. 1021 (2016), Matthew Grothouse

UIC Law Review

This Article uses the historical sweep of the Due Process Clause to evaluate the merits of Obergefell’s majority and dissenting opinions. Specifically, the Article explains why the Due Process Clause’s prohibition on arbitrary punishments in general—and legislative judgments in particular—invariably mandates the judicial nullification of arbitrary and irrational legislative acts. What exactly constitutes a “legislative judgment” and how much deference courts should exercise in examining legislative acts are the crucial and largely unanswered questions lying at the heart of the Obergefell case (and in substantive due process cases in general). Although the Obergefell Court’s discussion focuses on a single case, …