Supreme Court of the United States Commons^™

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Publications

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

Publications

No abstract provided.

Prop 8, Doma Defenders Rely On Federalism, Arthur S. Leonard

Other Publications

No abstract provided.

Will Supreme Court Rule On Doma?, Arthur S. Leonard

Other Publications

No abstract provided.

Supreme Court Strikes Down Doma’S Key Provision, Ducks On Prop 8, Arthur S. Leonard

Other Publications

No abstract provided.

Introduction: Trial By Jury Or Trial By Motion? Summary Judgment, Iqbal, And Employment Discrimination, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Supra Synopses, Ryan W. Dumm, Laura Turczanski

Seattle University Law Review Online

No abstract provided.

"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane

Articles

In U.S. v. Topco Associates, Inc., Justice Thurgood Marshall announced that "[a] ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.", In The Antitrust Constitution, Thomas Nachbar takes seriously the idea that federal antitrust laws serve a constitutional function. He argues that, contrary to common assumptions, the antitrust laws cannot be understood merely as a form of economic utilitarianism. Rather, they serve the additional purpose of preventing "regulatory harm," the assertion of law-like control over the conduct of others outside the sphere of one's own property interests.

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

Real Judicial Restraint, Joel Alicea

Scholarly Articles

The conservative legal movement has long stood simultaneously for originalism and judicial restraint. But in the past few years, the tension between a commitment to interpreting the Constitution as its authors intended and deferring to the will of legislators and the executive has become painfully clear. Does originalism demand judicial restraint, or is the Constitution undermined by such restraint?

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

All Faculty Scholarship

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

The Roberts Court And The Law Of Human Resources, Matthew T. Bodie

All Faculty Scholarship

The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree …

Textualism And Obstacle Preemption, John D. Ohlendorf

Georgia Law Review

Commentators, both on the bench and in the academy,
have perceived an inconsistency between the Supreme
Court's trend, in recent decades, towards an increasingly
formalist approach to statutory interpretation and the
Court's continued willingness to find state laws preempted
as "obstacles to the accomplishment and execution of the
full purposes and objectives of Congress'"--so-called
"obstacle preemption." This Article argues that by giving
the meaning contextually implied in a statutory text
ordinary, operative legal force, we can justify most of the
current scope of obstacle preemption based solely on
theoretical moves textualism already is committed to
making.
The Article first sketches …

Jurisdictional Sequencing, Alan M. Trammell

Georgia Law Review

The Supreme Court has begun to grapple with the
problems presented by the doctrine of jurisdictional
sequencing-the decision of certain issues, and even the
dismissal of cases, before a federal court has verified its
subject matter jurisdiction. Recent jurisprudence has
created confusion as to what, if anything, a federal court
may do before it verifies subject matter jurisdiction.
Moreover, scholars and courts have struggled to discern
an underlying rationale for jurisdictional sequencing, and
no theory has been able to explain the case law fully or
offer a satisfying normative defense of the doctrine.

This Article develops a theory of jurisdictional …

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian

Scholarship@WashULaw

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

The Story Of Kedroff V. St. Nicholas Cathedral, Richard W. Garnett

Journal Articles

From the Lecture

As I see it, John Kedroff's real-estate case complements well and matters for reasons similar to those that make so important yet another case, one that did capture young William Rehnquist's (and many others') attention during the spring of 1952; one that law students, lawyers, scholars, and jurists alike place near the top of their "Supreme Court's greatest hits" lists. In Youngstown Sheet & Tube, the Justices famously, though not with one voice, declared that President Truman's Korean War-era seizure of most of the nation's steel mills was unconstitutional. And, even if the decision's implications remain …