Supreme Court of the United States Commons^™

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …

The Supreme Court’S Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

William & Mary Law Review

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively “jurisdictional.” In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court’s erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …

The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

Faculty Publications

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

Compelling Interests And Contraception, Neil S. Siegel, Reva Siegel

Faculty Scholarship

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas …

An Update On Student Equal Access, Charles J. Russo

Educational Leadership Faculty Publications

In Board of Education of Westside Community Schools v. Mergens (1990), the Supreme Court upheld the Equal Access Act (EAA), a federal law enacted to permit student-organized groups to meet during noninstructional time.

The EAA traces its origins to Widmar v. Vincent (1981). At issue in Widmar was a policy whereby officials at a state university in Missouri made campus facilities generally available to student groups for their activities. Treating religion as a form of free speech, the Supreme Court ruled that insofar as officials allowed more than 100 student groups to use campus facilities, they created a forum for …

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

The Supreme Court And The New Equity, Samuel L. Bray

Vanderbilt Law Review

The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has …

No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones

Articles

If the Supreme Court rules against the government in King v. Burwell, insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges. The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage. Because sicker people will retain coverage at a much higher rate than healthier people, insurance premiums in the individual market will surge by as much as fifty percent. Policymakers will come under intense pressure to mitigate the fallout from a government loss …

Magic Words, Kiel Brennan-Marquez

William & Mary Bill of Rights Journal

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …

Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman

Articles

In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …

The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai

Loyola of Los Angeles Law Review

The U.S. military response to the 9/11 attacks has expanded into a “global war” without a definite geographic scope. Both the Bush and Obama administrations have executed attacks in several countries including Somalia, Afghanistan, Pakistan, and Yemen under the “global war” paradigm. This Article challenges the concept of a global armed conflict, instead favoring the “epicenter-of-hostilities” framework for determining the legality of military action against Al-Qaeda, the Taliban, and other terrorist groups. This approach, rooted in established international law, measures the existence of specific criteria in each nation where hostile forces are present to determine if an armed conflict in …

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

Faculty Scholarship

The Supreme Court's unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito's opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.

This article for the Hastings Law Journal's symposium on …

When Rhetoric Obscures Reality: The Definition Of Corruption And Its Shortcomings, Jessica Medina

Loyola of Los Angeles Law Review

Due to public scorn after the unraveling of the Watergate scandal, the Supreme Court considered the constitutionality of the Federal Election Campaign Act’s restrictions on political contributions and expenditures. Buckley v. Valeo established that no legitimate government interest existed to justify restrictions on campaign expenditures, and only the prevention of corruption or the appearance of corruption could justify restrictions on campaign contributions. Since then, the Court has struggled to articulate a definition of corruption that balances First Amendment protections with the potential for improper influence. This Article argues that the Court’s current definition of corruption is too narrow, and proposes …

In Defense Of Empirical Legal Studies, Christina L. Boyd

Buffalo Law Review

No abstract provided.

A Bad Proposal, Edward Whelan

Buffalo Law Review

No abstract provided.

Two Worlds, Neither Perfect: A Comment On The Tension Between Legal And Empirical Studies, Timothy M. Hagle

Buffalo Law Review

No abstract provided.

Numbers, Motivated Reasoning, And Empirical Legal Scholarship, Carolyn Shapiro

Buffalo Law Review

No abstract provided.