Supreme Court of the United States Commons^™

The Purpose And Practice Of Precedent: What The Decade Long Debate Over Stare Decisis Teaches Us About The New Roberts Court, Russell A. Miller

Scholarly Articles

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This …

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

Foreword: Major 2022-23 Supreme Court Cases, Richard L. Heppner Jr.

Duquesne Law Review

Last year, Duquesne Law Review published a symposium issue about the United States Supreme Court's momentous 2021 Term.¹ In it, faculty from the Thomas R. Kline School of Law of Duquesne University analyzed that Term's historic rulings, from Dobbs overruling Roe v. Wade² to Kennedy v. Bremerton School and Carson v. Makin upending years of freedom-of-religion jurisprudence.³ We explored the Court's apparent interest in arrogating more power to itself⁴ and how two controversial new doctrines-the major questions doctrine and the independent state legislature doctrine would or would not allow it to do so.⁵

The Ersatz Of The Plain-Meaning Rule Of Statutory Construction In Sackett V. Epa (Ii), Dana Neacsu

Duquesne Law Review

This essay uses the United States Supreme Court second decision in Sackett v. EPA,¹ or Sackett (II), to stress the obvious: judges are tasked with decoding the nation's laws for everyone's understanding. Or, in the words of John Marshall: "It is emphatically the province and duty of the judicial department to say what the law is."² Later that century, Justice Oliver Wendell Holmes, Jr. further clarified that judicial duty: "Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in circumstances …

Not Everything Has To Be A Taking: Tyler V. Hennepin County, Maryann Herman

Duquesne Law Review

In Tyler v. Hennepin County, we see the United States Supreme Court's continuation of the strengthening of individual property rights. The Court endeavored to address two issues in this case: 1) whether the seizing and selling of property to satisfy a tax debt without returning the surplus violates the Takings Clause; and 2) whether the forfeiture of the surplus resulting from a tax sale is an excessive fine under the Eighth Amendment. The Court answered the first question in the affirmative and, thus, did not address the second question.

The Domino Effect: Discussing The Future Implications Of Students For Fair Admissions, Inc. V. Harvard, Marissa C. Meredith

Duquesne Law Review

Since 1978, the United States Supreme Court has grappled with creating fair policies and just parameters to enable institutions of higher education to incorporate race -conscious admission policies to diversify students' educational experience.¹ The Court began this vital discussion with its landmark ruling in Regents of the University of California v. Bakke, where it determined not just that diversity in education was a compelling state interest that could survive strict scrutiny,² but also that it could not be achieved through the use of a quota system or a specialized track.3 The Court continued shaping the parameters of …

Trouble’S Bruen: The Lower Courts Respond, Glenn Harlan Reynolds, Brannon P. Denning

Scholarly Works

New York State Rifle & Pistol Ass'n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment's text. Justice Thomas's opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which …

The Future Of State Standing And The Controversial Massachusetts V. Epa Decision: United States V. Texas And Biden V. Nebraska Provide Mixed Signals, Bradford Mank

Faculty Articles and Other Publications

An important question is under what circumstances should states have standing to sue the federal government. Should states have greater standing rights than private parties to protect states’ unique interests, or should all parties in federal courts have the same standing rights? In its 2007 decision Massachusetts v. EPA, the Supreme Court in a divided five-to-four decision stated that states are entitled to “special solicitude” for Article III standing in suits in federal courts, but a dissenting opinion argued that states ought to have the same standing rights as other parties in federal court. While Massachusetts initially appeared to …

Brnovich: Extratextual Textualism, Maureen A. Edobor

Scholarly Articles

This Article provides a comprehensive analysis of Brnovich v. Democratic National Convention, which purports to create a new standard for Section 2 claims under the Voting Rights Act, by situating the critique in the ratifying-era history and original intentions of the VRA’s constitutional counterpart, the Fifteenth Amendment. Brnovich is necessarily examined through a historical and political framework, identifying throughlines from the Reconstruction Era original intentions for the Fifteenth Amendment, distilled from Congressional debates, the VRA’s initially expansive Supreme Court interpretation in South Carolina v. Katzenbach, and Congress’ Section 2 amendments in 1982, rebuking the Court’s attempts to erode the legal …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

The Innocence Standard: Supreme Court Nominees And Sexual Misconduct, Lisa Avalos

Connecticut Law Review

Should the United States Senate allow judicial nominees who have been credibly accused of sexual misconduct to be seated on the Supreme Court? How should we handle these allegations when they arise during the vetting process? Despite the importance of these questions, lawmakers have failed to address them.

The contentious Clarence Thomas hearings in 1991 featured testimony from Professor Anita Hill and did much to raise Americans’ awareness about the prevalence of sexual misconduct in the workplace. Although Professor Hill subsequently called for the Senate to implement a process for addressing future sexual misconduct allegations against Supreme Court nominees, her …

Amicus Brief Of Children’S Rights Legal Scholars And Advocates As Amici Curiae In Support Of Neither Party: Trump V. Anderson, Catherine Smith, Jeremiah Chin, Philip L. Gregory, Mathew W. Dos Santos, Julia A. Olson

Scholarly Articles

Amici write, not to urge a particular merits outcome to the questions presented, but to advocate for a judicial review process that (1) is true to constitutional text and this Court’s precedent, (2) accounts for non-voting children and future generations who fall within the protections of the counter-majoritarian provisions of the Constitution, and (3) embraces the perpetuity principle over the political question doctrine.

The Federal Future Of Medication Abortion, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

A majority of Americans believe that there should be a right to abortion, at least in some cases. Yet a vocal and determined minority has its sights set on a complete ban on all abortions everywhere in the United States. In many states, these anti-abortion activists have achieved their goal through new laws and limitations enacted in the wake of the Supreme Court's 2022 decision in Dobbs. Anti-abortion advocates are also challenging the Food and Drug Administration's regulatory approval of mifepristone, one of the drugs used in medication abortion (also known as medical abortion). The FDA had initially approved mifepristone …

Body. Freedom. Choice: Creating Artwork In Post-Roe America, Erin Sedra

Graduate Theses/Dissertations

I knew from a young age that I never wanted children. Whenever I expressed my disinterest in motherhood, I was often met with bewilderment, disapproval, and hostility. The church I was raised in taught me that my value and worth as a woman directly correlated with the power of my birthing hips. This fundamentalist upbringing has significantly shaped my relationship with my femininity, my body, and my artwork. When I feel powerless, turning to my art gives me a sense of control and self-expression. This body of work began as a reaction to the overturning of Roe v. Wade and …

Preambles Before The Preamble: Rediscovering The Preamble’S Role In Constitutional Interpretation, Stuart Ford

Brooklyn Law Review

This article explores how the Preamble to the Constitution (Preamble) would have been viewed when it was drafted by looking at how preambles were used in America in the seventeenth and eighteenth centuries. It offers the first comprehensive look at how preambles were viewed by lawyers, judges, politicians, and the public in the years before the Constitution was ratified. It demonstrates that courts’ modern treatment of the Preamble is at odds with its original meaning. Eighteenth-century Americans viewed the Preamble as an important tool for understanding and interpreting the Constitution. They would have expected courts to interpret the Constitution’s terms …

Balancing Chevron, Skidmore, And Major Questions: A Novel Framework For Judicial Deference To Agency Legal Interpretations, Charles A. Bower

Brooklyn Law Review

The Supreme Court’s decision in West Virginia v. EPA is a watershed moment for administrative law. For the first time, the Court explicitly invoked the Major Questions Doctrine by name in a majority opinion. The usage of the Major Questions Doctrine is important on its own, but equally important is the fact that the longstanding Chevron doctrine played no part in the majority’s analysis. The absence of Chevron doctrine in West Virginia in favor of the Major Questions Doctrine continues a trend where the Court has been relying on Chevron less often. The threats the Chevron faces do not appear …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …