Supreme Court of the United States Commons^™

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

Recusal Reform: Treating A Justice's Disqualification As A Legal Issue, Michael J. Broyde, Hayden H. Hall

Faculty Articles

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.

The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. …

Chevron Stare Decisis In A Post-Loper Bright World, Jonathan R. Nash

Faculty Articles

In its June 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the longstanding Chevron doctrine, which had directed courts to defer to agencies’ reasonable interpretations of ambiguous statutes. The Loper Bright Court attempted to minimize the substantial effect this change would have on administrative law and governance by declaring that “[t]he holdings” of cases that relied on the Chevron test to conclude “that specific agency actions are lawful...are still subject to statutory stare decisis despite our change in interpretive methodology.” But there are two problems with Chevron stare decisis. First, Chevron stare decisis is …

Healing Communities With Police Divestment: Seeking Abolition Through Transformative Reform And Community-Government Collaboration, Jessica E. Gillson

Undergraduate Honors Theses

Concerns about the efficacy and sustainability of the U.S. carceral system have persisted throughout the country’s history, recently fueling renewed activism and bipartisan calls for reform. However, proposed solutions remain divisive. This thesis first defines the current status of our prison systems, then explores collaborative alternatives to incarceration and policing that support communities and break cycles of incarceration.

Focusing on partnerships among local governments, community organizations, justice-involved individuals, and law enforcement, this study examines holistic approaches to crime prevention, reentry, and reintegration. Using an interdisciplinary framework incorporating restorative justice, community resilience, and systems theory, it investigates how community-based strategies can …

Qualified Immunity & Subjective Knowledge, John F. Preis

Law Faculty Publications

There is something weird going on within the doctrine of qualified immunity. The Supreme Court and lower courts routinely claim that officers who “knowingly violate the law” are not entitled to qualified immunity, but then—in almost the same breath—assert that an officer’s knowledge of the law is irrelevant to the qualified immunity analysis. What is even more strange is that these two opposing views can apparently be traced to the foundational case in the field: Harlow v. Fitzgerald.

This Article explores and proposes a resolution to this apparent contradiction. Beginning with Harlow itself, the Article explores the case using the …

Electing The Supreme Court, Dmitry Bam

FIU Law Review

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

Beyond Jarkesy: Rethinking The Role Of Administrative Law Judges In Sec Administrative Proceedings, Mark T. Uyeda, Jaime Marinaro

Fordham Journal of Corporate & Financial Law

No abstract provided.

In Re Firstenergy Corp. Securities Litigation: Where Macquarie Meets Affiliated Ute, Elizabeth Cosenza, Amanda M. Payne

Fordham Journal of Corporate & Financial Law

The central question this Article seeks to address is whether there is any world in which the Affiliated Ute presumption can still apply to cases under Rule 10b-5(b) after the Supreme Court’s decision in Macquarie? Put differently, if only half-truths and affirmative misrepresentations remain actionable under Rule 10b-5(b), is the Basic presumption the only pathway left for securities plaintiffs? The U.S. Court of Appeals for the Sixth Circuit will likely be the first court to address this issue in In re FirstEnergy Corp. Securities Litigation. The case will test the availability of the Affiliated Ute presumption post-Macquarie in cases based …

Cryptocurrencies, Nfts, And The Expanding Definition Of "Investment Contract": Has The Sec Already Torpedoed The Howey Test?, David B. Guenther

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court in SEC v. W.J. Howey Co. in 1946 famously defined the term “investment contract”—the catch-all term in the definition of “security” in the Securities Act of 1933—to mean (1) an investment of money, (2) in a common enterprise, (3) with an expectation of profits solely from the efforts of others. While the Howey test has endured as the standard definition of an investment contract, the Howey Court did not define the term “common enterprise,” and for more than fifty years, Howey’s common enterprise prong has eroded. Since 2017, the Securities and Exchange Commission has further eroded …

The Intended And Resulting Interpretations Of Article 9 Considering The Rise Of Textualism, Cat Gassiot

Fordham Journal of Corporate & Financial Law

This Article is the first to examine the interpretive choices of judges for Article 9 of the UCC. Textualism has become one of the predominant methods of interpretation for courts across the state and federal systems in the United States. While there is a great deal of academic work on what this means for traditional statutes, there is limited discussion of the interpretive effects of textualism on the UCC, much less Article 9, which governs secured transactions. The continuity and uniformity of secured transactions jurisprudence is fundamental as it underlies bankruptcy proceedings, debt and credit financing, and commercial transactions more …

Against Judicial Generalists, Matthew L.R. Fletcher

Other Publications

There is something irritatingly wrong with Indian law practice at the Supreme Court.

Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the Court is the last place an Indian tribe would ever want to be. No Indigenous person has argued a case before the Supreme Court since 2001, approaching a quarter century. Only a tiny handful of Indigenous people have ever clerked for a Supreme Court justice. …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Articles by Maurer Faculty

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Supreme Court Preview 2025 (Flyer), Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Scienter Potentia Est: The Case For The Presumption Of Use Standard In Insider Trading, Audrey Nelson

Fordham Journal of Corporate & Financial Law

Is it possible to accidentally insider trade? The Supreme Court has held that scienter is a necessary element of all § 10(b) and Rule 10b-5 actions, but the federal appeals courts are split on how the scienter requirement applies to insider trading cases. In a non-insider- trading § 10(b) case, the Supreme Court stated that § 10(b) scienter requires intentional misconduct. Although the Supreme Court has not heard a case specifically about the scienter element in the context of insider trading, those who support a use requirement claim that the § 10(b) scienter element requires the plaintiff to show that …

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.

Lewd, Rude, Obscene, And… Violent? Analyzing Student Clothing Depicting Firearms Under The First Amendment’S Obscenity Test, Luke Gorman

Dickinson Law Review (2017-Present)

Today’s national news and social media have repeatedly exposed our school-age children to the effects of shootings occurring within their schools and communities. Each shooting brings with it commentary, sometimes from the students themselves. While in-school student speech is more limited than speech levied in the outside world, students do not shed their speech rights at the “schoolhouse gate.” As a result, courts have failed to outline a consistent approach for when a student will be punished for wearing a shirt depicting a firearm to school. This Comment addresses this delicate balance by proposing a consistent three-part test framed by …

Dobbs V. Brown, Benjamin H. Barton

Dickinson Law Review (2017-Present)

Dobbs v. Jackson Women’s Health Organization1is the most important and impactful Supreme Court decision since at least Roe v. Wade, and potentially since Brown v. Board of Education. Past survey data show that most Americans can only name two Supreme Court opinions: Roe and Brown. Dobbs will surely join that list. This Article compares the history, drafting, and opinions of Dobbs and Brown to show what a missed opportunity Dobbs represents. Regardless of whether you agree or disagree with the opinion, it should be clear that Dobbs was one of those unique times (like that of Brown) where the Court …

Structural Originalism: A Second Amendment Case Study, Ian C. Bartrum

Scholarly Works

“Originalism” is having a national moment, even if it is not entirely clear what the word means. What should we be originalist about? The leading academic approach asks us to parse the communicative content of text ratified in a very different linguistic culture; then construct a modern legal meaning consistent with our semantic speculations. Too often the result enforces policy judgments made in a radically different moral and technological world. This makes very little sense.

In this paper I recommend a more perspicuous and coherent use of constitutional history, which I call “structural originalism.” Rather than saddle ourselves with the …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Office Intent And Excessive Force, John F. Preis

Law Faculty Publications

In the mayhem that often accompanies a police officer’s use of force, all manner of mistakes and miscalculations can occur. Suspects are accidentally shot, innocent bystanders are bitten by police dogs, and hostages are killed instead of their kidnappers. To what degree may persons harmed by police mistakes obtain relief through excessive force claims?

At present, the answer to this question is surprisingly uncertain. It is clear that an excessive force claim requires that an officer intend to seize the suspect, but it is far less clear whether the officer must also intend the nature and extent of force used …