Supreme Court of the United States Commons^™

The New Thoreaus, Mark L. Movsesian

Loyola University Chicago Law Journal

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly sixty-six million people—now claim, like Thoreau, to …

Justice Alito, Originalism, And The Aztecs, Andrew Koppelman

Loyola University Chicago Law Journal

No abstract provided.

From Conciliation To Conflict: How Dobbs V. Jackson Women's Health Organization Reshapes The Supreme Court's Role In American Polarized Society, Shai Stern

Loyola University Chicago Law Journal

Professor Shai Stern of Bar Ilan University in Israel analyzes the Court’s decision and argues that its approach not only denies a previously recognized constitutional right, but also opens the door for the challenge to other recognized rights. In addition, Professor Stern highlights the Court’s own delegitimization and contribution to rising political polarization.

You'll Grow Into It: How Federal And State Courts Have Erred In Excluding Persons Under Twenty-One From 'The People' Protected By The Second Amendment, Ryder Gaenz

FIU Law Review

After more than two centuries of jurisprudential stillness, the United States Supreme Court undertook the task of discerning the Second Amendment’s meaning in District of Columbia v. Heller, holding that the Second Amendment protects the individual right to self-defense. Since Heller, the lower courts have grappled with determining the scope of the Second Amendment. One question of scope—the subject of this piece—is at what age does a person come within the scope of the Second Amendment’s protections? Some federal and state courts have suggested, and in some cases held, that persons under twenty-one do not enjoy Second Amendment rights. However, …

Maintaining Due Process By Extending Bristol-Myers Squibb Co. To Federal Class Actions, Felicia D. Sych

American University Law Review

In 2017, the U.S. Supreme Court issued its seminal decision in Bristol Myers Squibb Co. v. Superior Court of California, subsequently altering the scope of personal jurisdiction and further narrowing its interpretation of specific jurisdiction. Bristol-Myers Squibb Co. held that a state court can only assert specific personal jurisdiction over a defendant when there is a meaningful nexus between the forum state and the claims at issue. The Court purposefully refrained from deciding whether its holding applies to federal courts adjudicating federal class actions. After denying a petition for writ of certiorari to resolve the issue in 2021, the question …

The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

For over fifty years, the Fourth Amendment’s scope has been largely dictated by the Katz test, which applies the Amendment’s protections only when the government has violated a person’s “reasonable expectation of privacy.” This vague standard is one of the most criticized doctrines in all of American law, and its lack of coherence has made Fourth Amendment search law notoriously confusing. Things have become even more complex following the Supreme Court’s landmark decision in Carpenter v. United States, which has spawned its own alternative test for determining the Fourth Amendment’s scope. The emerging Carpenter test looks to the revealing nature …

Book Review: The Art And Craft Of Judgment Writing: A Primer For Common Law Judges, Steve Leben

Faculty Works

No abstract provided.

Brief Of Law And Business Professors As Amici Curiae In Support Of Respondents: Macquarie Infrastructure Group V. Moab Partners, L.P., Sarah C. Haan

Scholarly Articles

Amici are scholars at American law schools whose research and teaching focus on federal securities regulation and the governance of public corporations. Three of the authors appearing as counsel on this brief have together submitted to this Court briefs on prior occasions as amici in cases arising under the federal securities laws on behalf of law and business faculty.2 All of us have written and/or taught extensively about the SEC’s system of disclosure and our experience includes service in positions that allowed for the participation in the evolution of the system of disclosure developed by the Securities and Exchange Commission. …

Judicial Deference To Agency Action Based On Ai, Cade Mallett

Catholic University Journal of Law and Technology

No abstract provided.

Personal Jurisdiction And The Fairness Factor(S), Megan M. La Belle

Emory Law Journal

No abstract provided.

The Causation Canon, Sandra F. Sperino

Faculty Publications

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish "but-for" cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

The Disability Docket, Jasmine E. Harris, Karen M. Tani, Shira Wakschlag

American University Law Review

The monumental changes emanating from the contemporary Supreme Court have now generated abundant commentary—but it remains possible to glean new insights if we review the Court’s work from an alternative perspective, one that does not often inform mainstream accounts. Drawing on insights from Disability Legal Studies and other critical approaches to law, as well as from the trenches of disability advocacy and civil litigation, this Article applies a “disability lens” to the Supreme Court’s 2021 and 2022 Terms. Our review of the Court’s published decisions and broader docket suggests three themes. We highlight (1) the role of disability cases in …

The Absurd Reach Of A "Colorblind" Constitution, David Hinojosa, Genevieve Bonadies Torres

American University Law Review

Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the …

Vested Patents And Equal Justice,, Adam J. Macleod

Faculty Articles

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law 's interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure …

Purchasing Population Growth, Edward W. De Barbieri

Indiana Law Journal

State and local lawmakers compete to attract new populations of workers to purchase homes, grow the tax base, and develop local economies. Even before the pandemic, lawmakers used a variety of tax incentives and other legal levers to attract new residents. Increasingly, in some cases bolstered by the Coronavirus Aid, Relief, and Economic Security (CARES) Act funds, local governments are attracting high-paid, well-skilled, remote workers with cash gifts and other direct economic benefits.

Although cash incentives for remote workers have been increasing in popularity, they remain unproven with respect to intended outcomes and have yet to face legal challenge. The …

Rooted: Metaphors And Judicial Philosophy In Artis V. District Of Columbia, Richard L. Heppner Jr.

Law Faculty Publications

This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018).

Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, …