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Brief For Religious Liberty Scholars In Support Of Petitioners, Mark S. Storslee, Kevin T. Baine, Richard S. Cleary Jr., Ian M. Swenson, Joshua A. Hanley, Richard W. Garnett

Court Briefs

No. 24-154
Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission

On Petition for a Writ of Certiorari to the Supreme Court of the State of Wisconsin

From the Summary of Argument

The First Amendment’s Religion Clauses prohibit the government from answering religious questions or discriminating among religions. At a minimum, that means courts may not dole out protection to some religious groups but not others based on favored or supposedly ‘typical’ religious activities. When administering statutory exemptions whose beneficiaries are religious organizations, courts may not gainsay organizations’ sincere religious beliefs to impose their own view …

Brief Of Law Professors As Amici Curiae In Support Of Respondent, Ira P. Robbins

Amicus Briefs & Court Filings

INTRODUCTION AND SUMMARY OF ARGUMENT: "The right to trial by jury is 'of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right' has always been and 'should be scrutinized with the utmost care." SEC v. Jarkesy, 144 S. Ct. 2117, 2128 (2024) (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)). The Seventh Amendment reflects and enshrines that tradition, providing that in "[s]uits at common law ... the right of trial by jury shall be preserved." U.S. Const. amend. VII (quoting Dimick; see also City of …

The Forgotten Fundamental Right To Free Movement, Noah Smith-Drelich

Northwestern University Law Review

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court.

This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article …

The Untenability Of Justice Clarence Thomas's Indian Law Jurisprudence: Confronting The Indian Commerce Clause To Address The Problem Of Historical Change In Federal Indian Law, Skylar Logan Wiseman

American Indian Law Journal

By viewing the Indian Commerce Clause as conferring only a modest grant of federal power over Indian affairs—a power limited solely to trade in the economic sense of the word—Justice Clarence Thomas has subjected the Court’s Indian law jurisprudence to a wide-ranging originalist critique that, if successful, would invalidate nearly all of federal Indian law. Justice Thomas’s efforts to locate plenary power within the metes and bounds of the Indian Commerce Clause are here revealed for what they really are: attempts at tenability and coherence in a field of law which simultaneously bolsters tribal sovereignty while restricting it in ways …

Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons, Michael E. Solimine

Faculty Articles and Other Publications

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court …

Dobbs And The New Doctrine Of Stare Decisis, Russell A. Miller

Scholarly Articles

Alongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent was meant to …

Title 18’S Property Conundrum, Karen E. Woody, Joshua L. Clardy

Scholarly Articles

“Property,” in legal terms, carries significant weight. Once an object is heralded as “property,” that object becomes a step closer to being afforded the protections of the Constitution, offered equitable remedies at a court’s disposal, or even subjected to taxation by the state or federal government. Defining an object as “property” also puts it within the reach of the Title 18 property fraud statutes. Title 18’s fraud statutes have been often lauded by federal prosecutors for their “extraordinary utility.” In their current iteration, these statutes criminalize schemes to defraud “money,” “property,” and “the intangible right of honest services.” But what …

Kennedy V. Louisiana And The Future Of The Eighth Amendment, Alexandra L. Klein

Scholarly Articles

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024. These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency. Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana. These laws, which resemble state attempts …

The Supreme Court During Covid-19: Keeping Its Head When Those About It Were Losing Theirs, Timothy C. Macdonnell

Scholarly Articles

Alexander Hamilton's Federalist No. 78 suggests that one of the reasons for a life-tenured judiciary whose pay cannot be altered is because "judges may be an essential safeguard against the effects of occasional ill humours in the society." Our Nation's history is replete with instances of ill humor leading to violations of constitutional rights. Wars, epidemics, natural disasters, civil unrest, and economic crises all demand governments to act and act swiftly. But courts, and particularly the United States Supreme Court, are necessary to check governments when they go too far in contending with an emergency.

Historically the country's courts have …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Interpreting Congress, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

This Article introduces the concept of congressional interpretation. Congressional interpretation describes a strategy on which the Supreme Court relies, but rarely acknowledges. It occurs when courts try to understand what the law is by looking beyond a specific statute, or even a specific statute’s legislative history, and instead turning to vague beliefs about congressional behavior. Courts use congressional interpretation to: understand the relationship between a substantive statute and subsequent appropriations; evaluate statutes on the basis of post-enactment congressional inaction; and impose assumptions about congressional norms through clear statement rules. For instance, a court considers whether Congress granted statutory authority when …

A Supreme Sidestep: The Justices' Artful Dodge On Platform Immunity, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi 's suicide following a privacy violation on Twitter highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user generated content. While initially celebrated …

Shoot The Messenger: Why Section 230 Does Not Shield Suggestive Content Delivery, Alexander Heinkele

Cardozo Law Review de•novo

Internet companies have frequently relied on Section 230 of the Communications Decency Act of 1996 to avoid liability for third-party content hosted on their platforms. However, over time, companies began to take advantage of the broad cover of Section 230 in circumstances outside the statute’s original scope. This Note advocates for a more nuanced interpretation of the statute as it applies to suggestive algorithms and offers a proposal for amending Section 230 to better reflect the modern digital landscape.

The Score Act Is Unconstitutional: Private Nondelegation Problems With Congress’S Latest Attempt To Regulate College Sports, Sam C. Ehrlich, Ryan M. Rodenberg

Cardozo Law Review de•novo

The Student Compensation and Opportunity through Rights and Endorsements Act (“SCORE Act”) is Congress’s most ambitious effort yet to bring stability to college sports, codifying the recent House settlement while granting sweeping regulatory power to private athletic associations such as the National Collegiate Athletic Association (“NCAA”) and the College Sports Commission (“CSC”). However, by delegating policymaking authority to these private, self-interested entities without any sort of public oversight, the bill raises serious constitutional concerns under the private nondelegation doctrine. Drawing on parallels to a string of litigation involving the Horseracing Integrity and Safety Act (“HISA”) and recent Supreme Court signals, …

The Inconvenience Doctrine, Alexi Pfeffer-Gillett

Scholarly Articles

In a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries.

This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with …

Answered By Text, Jennifer L. Mascott, Eli Nachmany

Scholarly Articles

This Essay takes stock of a pivotal moment at the Court: statutory interpretation at center stage in administrative law. The U.S. Supreme Court’s most recent Term saw numerous landscape-shifting administrative law decisions. The most widely discussed was the Court’s elimination of 40-year-old Chevron deference in Loper Bright Enterprises v. Raimondo. The Court’s decisions also effected significant change in the scope of Seventh Amendment jury trial rights and the length of time that individuals, businesses, and associations have to challenge agency actions. But taken together, the Court’s decisions did not radically restructure the administrative state on constitutional grounds. Despite the substantial …

A More Luminous Beacon, William M.M. Kamin

Scholarly Articles

Over the Supreme Court’s past four Terms, federal post conviction habeas corpus has been placed on the chopping-block. Its fate hangs in the balance of an historical debate over the maxim, oft recited by the Court between 1830–1953, that post conviction habeas reaches only “jurisdictional defects” — as opposed to “mere error” — on the part of the convicting court. Justices Gorsuch and Thomas maintain that “jurisdiction” carried then the same narrow meaning it does now: power ab initio over the offense charged and the defendant’s person. Justices Kagan and Jackson contend that, in this context, “jurisdictional defect” was understood …

Amending Rule 15.3 Of The Mississippi Rules Of Criminal Procedure To Fully Capture Boykin V. Alabama And Acknowledge Systemic Coercion Indigent Defendants Face In Mississippi, Sarina P. Larson

MC Law Review

The U.S. Constitution—not a state—is what governs questions of constitutionality. It follows that for a state court to make a constitutionally sufficient record of a defendant’s waiver at their plea, the complete interpretation as to sufficiency by the United States Supreme Court must be followed. This Comment stands for the proposition that when Rule 15.3 of the Mississippi Rule of Criminal Procedure was adopted in 2017, it misinterpreted the call of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969). Ultimately, this Comment suggests amendments to Rule 15.3 that would place it in compliance with Boykin, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …