Supreme Court of the United States Commons^™

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

Chevron Deference Is Dead, Long Live Deference, Jack M. Beermann

Faculty Scholarship

The demise of Chevron deference standing alone may turn out to be much less important for the future of administrative law and agency regulation than many believe. The Court explicitly approved of deference under the Skidmore factors, which instruct reviewing courts to “resort for guidance, even on legal questions” to “the interpretations and opinions of the relevant agency, made in pursuance of official duty and based upon specialized experience.”8 Further, the Court had already created numerous limitations to the reach of Chevron deference and, as the Court noted, it had not deferred under Chevron in nearly a decade. Chevron deference …

On The Nature Of Regulating Medication Abortion: A Post-Dobbs Analysis On The Legality Of Emerging Efforts To Ban Federally Approved Mifepristone, Yann Kaufman

MC Law Review

No abstract provided.

A Jacksonian Theory Of Estoppel In Ip Litigation Against The United States, Leonard C. Brahin

Washington and Lee Law Review Online

As an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or …

Rising Temperatures, The Prison Litigation Reform Act, And The Heat Death Of Human Dignity In Texas Prisons, Brianne Wylie

Northwestern University Law Review

This Note seeks to shed light on the life-threatening danger of extreme heat in un-air-conditioned Texas prisons. The Prison Litigation Reform Act (PLRA) starkly limits the relief available to those suffering and dying in these prisons. This Note proposes an amendment to the legislation that could create a path toward lasting relief for incarcerated people. After analyzing the effects of increasing heat on the particularly vulnerable prison population, this Note analyzes how the Supreme Court and the Fifth Circuit have handled claims alleging constitutionally violative prison conditions under the Eighth Amendment—in short, ineffectively, if at all. This Note then details …

Thurgood Marshall Memorial Lecture: 80 Years After Korematsu V. U.S.: It's All About Us 10-29-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Statutory Religious Accommodation In Employment And The Problems Of Judicial Intent And Outcome, George Wright

Texas A&M Law Review

The Groff v. DeJoy case unhappily, but inevitably, generates a variety of realistically unresolvable fundamental problems in typical statutory religious accommodation cases. Perhaps even more important, though, are the unintended and perverse results of Groff’s placing a generally heavier burden of religious accommodation on employers. The Groff standard indeed incentivizes the bringing of more religious discrimination cases, and both the winning and losing of such cases by religious claimants. But our adversarial cultural circumstances, including the typical inseparability of religion, politics, and culture, crucially affect the actual, but unintended, results of judicial reforms. The Groff rule is likely to …

Free Exercise Challenges To Entheogen Prohibitions: Precedents, Principles, And Issues, Kevin Chamow

Pace Law Review

This paper examines the conditions for the possibility of future

challenges to prohibitions against the cultivation, distribution, and use of entheogens—substances which reliably induce religious experiences in their users—based on the Free Exercise Clause of the First Amendment. Smith no longer applies to federal prohibitions against entheogens, because of Religious Freedom Restoration Act (RFRA). Under the current Gonzalez framework, the Court is given the difficult task of evaluating the cost of the claimant’s exemption against the state’s interest in the general ban; including how the exemption would impact enforcement of the general ban. This is essentially predictive systems-theory and policymaking, …

The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis

Touro Law Review

In 2015, the Supreme Court in Kingsley v. Hendrickson held that a pretrial detainee claiming excessive force on the part of the state must only show that the force used was objectively unreasonable. Prior to the adoption of the purely objective standard, many courts around the country were analyzing such cases through a subjective standard to determine whether the officers subjectively knew that the force used against a pretrial detainee was unreasonable. The absence of this objective standard essentially allowed state officials to use excessive force against pretrial detainees without violating an individual’s Constitutional rights. The Supreme Court reasoned that …

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff

Touro Law Review

This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …

What Standard Of Proof Must Employers Satisfy To Demonstrate The Applicability Of A Fair Labor Standards Act Exemption?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: Employees of E.M.D. Sales, Inc., an international food distributor, sued E.M.D., alleging that it violated the Fair Labor Standards Act (FLSA) when it withheld overtime wages from these employees. As an affirmative defense, E.M.D. asserted that the employees were FLSA‑exempted outside salesmen. This case asks the Court to determine whether employers must use the preponderance-of-the-evidence standard or the clear-and-convincing evidence standard to prove the applicability of an exemption under the FLSA.

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.

Touro Law Review

The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …

The Danger Of Silence: The Negative Effect Of Supreme Court Hesitance To Establish A Bright-Line Rule For Determining Patent Subject Matter Eligibility, Amber N. Roibu

Touro Law Review

Ambiguity surrounding the interpretation of 35 U.S.C. § 101 and the ultimate application of the Alice/Mayo standard for determining patent subject matter eligibility has long plagued the courts, practitioners, and USPTO examiners alike. Maintaining a standard that leads to sheer confusion and, as a result, inconsistent rulings severely muddles the ultimate goal of patent law, to promote innovation. The Supreme Court has been presented with ample opportunities to address these issues, with the Solicitor General consistently recommending that it hear cases that deal with patent-eligibility debates. Nonetheless, the Supreme Court's continued hesitancy to grant certiorari on these cases only further …

The Common Law’S Resistance To Gender Violence, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Over twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault …

Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson

Touro Law Review

In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. …

Law, Fact, And Appellate Review, Adam N. Steinman

Faculty Scholarship

For centuries, courts have been called upon to distinguish between law and fact. That distinction played a key role in recent Supreme Court decisions on two critical components of appellate review. Dupree v. Younger considered an important question regarding what a party must do at trial to preserve an issue for appellate review. And Google LLC v. Oracle America, Inc. addressed how to select and apply the standard of appellate review--specifically, whether and how the appellate court must show deference to particular decisions made at the trial level.
Both decisions were partially right. Dupree correctly focused on whether certain early …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

A Statistical Look At The Supreme Court's 2009 Term, John M. Schleb Ii, Colin Glennon, Hemant Sharma

Tennessee Journal of Law and Policy

Whether a change in membership occurs or not, every Supreme Court term presents a unique set of controversies and decisions for legal scholars to examine. Herein, we offer a discussion of the Court's recently completed 2009-2010 term. Rather than analyzing specific opinions in detail (as many have already done), we generate a comprehensive statistical analysis of justice voting behavior for the term. In particular, we examine consensus and division on the Court, the ideological tenor of the term, voting alignments among the justices, the production of opinions, and the Court's overall ideological spectrum based on individual voting patterns. Ultimately, we …