Supreme Court of the United States Commons^™

Property Rights Or Obstacles To Progress?: The Fundamental Flaws In Takings Jurisprudence, Liam Higgins

Journal of Law and Policy

New York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New …

Patient-Practitioner Relationship In The Post-Dobbs American Landscape, Lynette B. Martins, Scott J. Schweikart

Pace Law Review

The patient-practitioner relationship is among the most sacred and fundamental in health care, particularly in the realm of reproductive care. Laws regulating what practitioners can and cannot discuss in the exam room with patients have made a resurgence in the post-Dobbs era. In the reproductive care context, these restrictive laws impact patients’ access to critical medical services but also the fundamental underpinnings of the patient-practitioner relationship. In a post-Dobbs era, laws restricting abortion are increasingly dangerous to the health of those seeking these services. With no federal protection for access to abortion services and abortion services hinging on …

The Good Officer: President Trump, General Milley, And The “Necessity” Of Constitutional Fidelity, John C. Dehn

Brooklyn Law Review

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital …

Dejoyful Noise: Reimagining Title Vii Religious Accommodations In The Wake Of Groff V. Dejoy, Mikko Biana

Brooklyn Law Review

The prominence of religion in everyday life has dwindled in recent decades. The number of Americans who attend weekly religious services continues to decline, and wide swaths of the population now profess irreligion altogether. Despite this trend, constitutional mandates such as the Free Exercise and Establishment Clauses remind society that throughout history and into the present day, the relationship between religion and state has been and always will be ripe for discussion. The 2023 Supreme Court decision Groff v. DeJoy exemplifies this characterization. Prior to Groff, the Court primarily relied on a 1977 case, Trans World Airlines, Inc. v. Hardison, …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

The Politics Of Constitutional Dignity Jurisprudence, Daniel Haefke

Brooklyn Law Review

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the …

Shadows Of The Crown: The Virtue Of Equilibrium In American Sovereign Immunity, William T. Olmstead

Cleveland State Law Review

Under the doctrine of sovereign immunity, the federal and state governments of the United States cannot be sued or prosecuted unless they voluntarily waive their own impunity. In recent decades, the Supreme Court has expanded the scope of the sovereign immunity of the state governments. This Note argues that such an expansion is a profound and shortsighted mistake. It proposes that the most effective way to balance governmental functionality with civic accountability is to pass and ratify a constitutional amendment that solidifies national sovereign immunity and abolishes state sovereign immunity. It argues that such action is necessary to ensure the …

The Dignitary Harms Of Racism In Public Education: Expanding The Lens Of Brown Beyond Segregation, Kumar Ramanathan, Matthew D. Nelsen

Cleveland State Law Review

Reflecting on the 70th anniversary of Brown v. Board of Education, we reconsider the landmark ruling’s conception of dignitary harm in public education. In its argument against the separate-but-equal standard that undergirded segregated schools in the South, the Supreme Court focused on the psychological harm that segregation imposed on Black children. Building on past critiques, we argue that the Court’s analysis was too narrow: the psychological harm it identified is only one of many forms of dignitary harm that racially marginalized students can face in schools. Importantly, dignitary harms can persist even in integrated schools and classrooms, through practices …

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

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 …

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 …

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.

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, …

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.

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 …