Supreme Court of the United States Commons^™

Vega V. Tekoh, Elizabeth M. Hudson

Tennessee Law Review

No abstract provided.

Legal Philosophy For Lawyers In The Age Of A Political Supreme Court, Patrick J. Borchers

Tennessee Law Review

Legal Philosophy has long been concerned with the question of what brands a norm as legal, as opposed to a non-legal norm of justice or morality. This central question has occupied the attention of philosophers and lawyers for centuries. Roughly speaking, the Naturalist school contends that legal norms are inextricably intertwined with norms of morality and justice (and in its strongest form contends that law-like pronouncements that are immoral or unjust are not fully laws), while the Positivist school argues that a social construct (often called the Rule of Recognition) brands selected norms as legal, and thus legal norms may …

Ford Motor Company V. Montana Eighth Judicial District, Maddie Rudge

Tennessee Law Review

No abstract provided.

Mississippi V. Tennessee, Jackson W. Welsh

Tennessee Law Review

The Supreme Court's decision in Mississippi v. Tennessee quietly marked a potential turning point for the once antiquated doctrine of equitable apportionment. This doctrine provides a framework for resolving disputes over the allocation of resources, usually water, that cross state boundaries, and has done so since the early 20th century. In this article, we will delve into the history of equitable apportionment, examining its evolution from 1907 to the present day. We explore the key cases that have slowly broadened the doctrine, with a particular focus on Mississippi v. Tennessee and its implications for the future of equitable apportionment. Through …

West Virginia V. Epa, Troy C. Book

Tennessee Law Review

No abstract provided.

A Theory Of Law For The Next Founding Generation, David N. Mcneill, Emily Tucker

CPT Papers & Reports

At the present moment, the greatest threat to our constitutional democracy, and perhaps to our survival as a nation, is the autocratic aspiration of a President who claims to have been saved by God to institute a new era of American imperialism and interplanetary manifest destiny. It might seem in this context, with a President issuing executive orders that aggressively invite constitutional challenge, and a Vice-President who has advocated that the President should ignore Supreme Court rulings he deems illegitimate, that arguments about constitutional legal theory could only be of theoretical interest. That would be true if our constitution were …

Deducting Dobbs: The Tax Treatment Of Abortion-Related Travel Benefits, Samantha J. Prince

Faculty Scholarly Works

In 2022, Dobbs v. Jackson Women's Health Organization overturned both Roe v. Wade and Planned Parenthood v. Casey thereby giving the states carte blanche to do as they wish regarding abortion access. The decision created upheaval in the United States. However, it also provided the impetus for the creation of a new employee benefit, abortion-related travel benefits.

Thirteen states had anti-abortion trigger bans that were unenforceable until Dobbs. Several other states have passed legislation that criminalizes, or significantly restricts, abortion access. Women residing in these states will now endure greater financial, health, and temporal challenges to travel out of state …

Three-Judge District Courts, Direct Appeals, And Reforming The Supreme Court’S Shadow Docket, Michael E. Solimine

Faculty Articles and Other Publications

The “shadow docket” is the term recently given to a long-standing practice of the United States Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently the practice has received unusual attention inside and outside the legal community, because of its seemingly greater use by the Court in high-profile cases, with the emergency orders sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems …

Ncaa V. Alston (Case Notes), Carson Blakely

Tennessee Law Review

In August 2013, I was a thirteen-year-old immersed in the world of NCAA Football 14, a popular video game by Electronic Arts (EA). Through my digital replicas and the actual Tennessee Volunteer football players, my friends and I led the Vols to three consecutive BCS National Championships. My fictional character, a top running back, won three Heisman Trophies, which remains my greatest athletic accomplishment to date. Then, EA announced the discontinuation of the NCAA Football franchise, leaving millions of digital coaches, including myself, perplexed.1 Little did I know that the issue at hand was the complex legal realm of Name, …

Social Media On Trial: How The Supreme Court Could Permanently Alter The Future Of The Internet By Limiting Section 230'S Broad Immunity Shield, J. Tyler Wampler

Tennessee Law Review

Section 230 of the Communications Decency Act has allowed the internet to develop and flourish at an unprecedent pace. The law has been interpreted broadly to grant immunity to interactive computer services like social media platforms from liability for content posted by users. Wielding this immunity, internet platforms are empowered to act innovatively without fear of frivolous lawsuits. However, there are ongoing concerns that this broad interpretation shields modern tech companies from liability for actions that were never intended to be protected.

Two companion cases interpreting Section 230 are currently before the U.S. Supreme Court, where the Court is being …

Google Llc V. Oracle America, Inc., Elizabeth Spica

Tennessee Law Review

No abstract provided.

Ncaa V. Alston, Emma S. Fowler

Tennessee Law Review

No abstract provided.

Thoughts On Law Clerk Diversity And Influence, Todd C. Peppers

Scholarly Articles

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking …

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley

Duquesne Law Review

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner Jr.

Duquesne Law Review

In last term's blockbuster case Dobbs v. Jackson Women's Health Organization, one of the considerations Justice Alito cited for overturning Roe and Casey was that they "have led to the distortion of many important but unrelated legal doctrines."¹ Alito asserted that abortion jurisprudence has, among other things, "ignored the Court's third-party standing doctrine."² Whether that is a fair description of the case law is debatable. But it raises the question of whether the newly ascendant conservative majority might likewise distort standing doctrine, and other justiciability doctrines, in order to decide particular, controversial issues.

Applying Bentham's Theory Of Fallacies To Chief Justice Robert's Reasoning In West Virginia V. Epa, Dana Neacsu

Duquesne Law Review

There are two issues in West Virginia v. EPA.¹ One regards justiciability, and the other delegation. Article III of the Federal Constitution limits justiciability to controversies, to disputes involving an injured party whose harm the judiciary believes it can remedy. The Constitution is silent on delegation.

This Essay summarizes the Court's decision in West Virginia v. EPA.² It also analyzes Chief Justice Roberts' reasoning and addresses the case's flaws from two perspectives. It references the Court's decision connecting it to the so-called New Deal Cases,³ because in both Panama Refining Co. v. Ryan,^{4 …}

American University Law Review Keynote Address, Erwin Chemerinsky

American University Law Review

My talk this morning focuses on the agenda of the current Roberts Court. I think that every Supreme Court can be said to have an agenda. Sometimes it seems conscious and deliberate, apparent from the outset. Sometimes it seems to evolve and only becomes obvious later.

Dobbs, Right-Wing Revisionism, And Public Outrage: Rodrigo's Late-Night Chronicle, Richard Delgado, Jean Stefancic

American University Law Review

When we next see Rodrigo, he has been brought into town by Giannina’s women’s rights group. The Supreme Court had just decided Dobbs and revoked a constitutional right that had existed for fifty years prior. Giannina’s organization is meeting to discuss possible responses to the Dobbs decision. While he is in town, Rodrigo decides to seek out the professor, hoping to reconnect and pick his brain on this seismic shift in the legal landscape.

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …