United States Supreme Court Research Articles

Greater public confidence in the US Supreme Court predicts more jurisdiction stripping

AbstractA growing body of empirical research shows an association between public support for the US Supreme Court and both judicial independence and congressional court curbing activity. At the same time, studies of jurisdiction stripping show Congress’ efforts to limit federal courts’ jurisdiction are principally related to courts’ workloads rather than ideological differences between courts and Congress. Here, the authors connect these streams of inquiry by testing the hypothesis of a negative relationship between public support for the Supreme Court and jurisdiction-stripping legislation. Contrary to prior studies, the authors find a positive relationship between Americans’ confidence in the Supreme Court and jurisdiction stripping. This result indicates the need for additional research on the interactions among public opinion, federal courts, and Congress.

Constitutionalism Reborn

As Conservatives have come to dominate the US Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its Conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the UK. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the US seceded from the UK. It is perplexing since the US constitutional revolution stands for rejection of the British model of parliamentary sovereignty. This Article intends to redefine the relationship between the US and UK constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the US’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and supreme Constitution. Rather, we did not realize that parallel developments were taking place in the UK. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the UK. We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the US felt powerless to deal with a President who does not care for constitutional norms, the Article reveals how the model designated enforcement mechanisms for constitutional norms/conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the US Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the US under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the People.

U.S. Senatorial Race for Maine

Over the course of 23 years, United States Senator Susan Collins (R-ME) has been able to successfully walk a unique line of nonpartisanship, never stepping too far to the right, or to the left. However, following her vote to confirm Justice Brett Kavanaugh to the United States Supreme Court in 2017, and her vote to acquit President Trump of his impeachment charges in early 2020, Susan Collins placed herself in an incredibly precarious situation. Pundits and analysts were convinced that this election would turn into a referendum on Susan Collins (Lyall 2020). Meanwhile, her opponent, the current Speaker of the Maine House of Representatives, Sara Gideon, consistently led in the polls and worked off of the momentum gained from the success of the U.S. House Democrats in the 2018 midterms. And yet, Susan Collins stunned the nation by defeating Gideon. This paper evaluates and analyses what possible causes led to this outcome. Ultimately, Collins’ choice to vote against the confirmation of late-Ruth Bader Ginsburg's replacement on the Supreme Court convinced Mainers that Susan Collins could still be trusted, and should be given another chance.

Consider how free speech case could impact disability discrimination complaint resolutions

While it may be too early to fully comprehend the ramification of Uzuegbunam v. Preczewski, 592 U.S. ___ (2021), the United States Supreme Court 8–1 recent decision authored by Justice Thomas may have a profound impact on colleges and universities because students with disabilities, indeed all students, may now be entitled to sue for nominal damages even after a postsecondary institution eliminates a discriminatory policy.

Four Japanese in Search of Henry Miller1

Nearly ten years before the United States Supreme Court ruling that made American author Henry Miller a household name, the Japanese courts had ruled that Miller’s literature was art, and not pornographic. Consequently, beginning in the 1950s, Miller started shifting his attention more intently to the island nation of Japan. With his rising fame across Japan, various Japanese individuals sought to learn more about this controversial figure. By incorporating archival materials, field research, and interviews, this article focuses on four of these Japanese men who have had a calculable impact on Miller’s reputation in Japan. Three them were in correspondence with Miller, another has become one of the foremost specialists in Henry Miller studies in the world. What is revealed herein is the decades-long personal relationship between Miller and Japan that has hitherto been unexplored by Miller scholars and biographers.

Supreme Court Nominations at the Bar of Political Conflict: The Strange and Uncertain Career of the Liberal Consensus in Law

Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. InThe Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.

A Conservative Right to Privacy: Legal, Ideological, and Coalitional Transformations in US Social Conservatism

AbstractThe right to privacy has long been regarded as a liberal progressive principle, one that guarantees gender-based equality and liberty in the domain of reproductive rights. Since the US Supreme Court’s renowned articulation of privacy inRoe v. Wade, privacy’s opponents have condemned the right as an illegitimate judicial invention with no basis in the Constitution. This article addresses the puzzle of why a coalition of Christian conservative legal organizations, conservative foundations, Trump administration officials, Republican party lawmakers, and trans-exclusionary radical feminists has assembled to redefine the right to privacy in service of anti-transgender politics. While much attention has been paid to the proliferation of religious liberty-based challenges to the rights of sexual and gender minorities, these accounts miss how central the fight to reassociate privacy has become in conflicts waged in state and federal courts, city and state legislatures, and ballot referendum campaigns. Although this coalition eschews any mention ofRoeor reproductive rights, it does adopt a substantive due process-based interpretation of privacy’s mandate despite the typical conservative disdain for that doctrine. Additionally, the coalition frames its project as one that balances competing rights claims by defending (cis) women’s rights against allegedly lopsided trans-inclusive reforms.

How university diversity rationales inform student preferences and outcomes

It is currently commonplace for institutions of higher education to proclaim to embrace diversity and inclusion. Though there are numerous rationales available for doing so, US Supreme Court decisions have consistently favored rationales which assert that diversity provides compelling educational benefits and is thus instrumentally useful. Our research is a quantitative/experimental effort to examine how such instrumental rationales comport with the preferences of White and Black Americans, specifically contrasting them with previously dominant moral rationales that embrace diversity as a matter of intrinsic values (e.g., justice). Furthermore, we investigate the prevalence of instrumental diversity rationales in the American higher education landscape and the degree to which they correspond with educational outcomes. Across six experiments, we showed that instrumental rationales correspond to the preferences of White (but not Black) Americans, and both parents and admissions staff expect Black students to fare worse at universities that endorse them. We coded university websites and surveyed admissions staff to determine that, nevertheless, instrumental diversity rationales are more prevalent than moral ones are and that they are indeed associated with increasing White-Black graduation disparities, particularly among universities with low levels of moral rationale use. These findings indicate that the most common rationale for supporting diversity in American higher education accords with the preferences of, and better relative outcomes for, White Americans over low-status racial minorities. The rationales behind universities' embrace of diversity have nonlegal consequences that should be considered in institutional decision making.

ARABIAN SLIGHTS: THE TRUMP ADMINISTRATION’S BREACHES OF INTERNATIONAL REFUGEE TREATIES AND A ROAD TO REVERSING TRUMP’S WRONGS

The Trump administration was notorious against refugees in general and refugees from Muslim countries in specific. While the European Union was subject to a refugee crisis at the time due to Arabs fleeing to the European borders in high numbers, Trump wanted to avoid a refugee crisis in the US at any cost, including violating International Refugee treaties and the US Constitution. In this article, we evaluate Trump administration’s policies and executive orders regarding refugees in light of two International Refugee treaties, namely: The Convention against Torture and other Cruel Inhumane or Degrading Treatment (“UNCAT”) and the 1951 Refugee Convention and its 1967 Protocol. Furthermore, this article scrutinizes the Trump administration’s foreign policies that were intentionally aiming at undermining refugees’ protections under International Refugee treaties by defunding a vital Refugee organization such as the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). Moreover, we argue that Trump did not only breach International Refugee treaties, but also the First Amendment of the US Constitution and two notable US Supreme Court doctrines: The Charming Betsy and the Chevron doctrines. In addition, this article evaluates Biden’s recently adopted executive orders and policies concerning refugees whose purpose was to reverse Trump’s international and constitutional law breaches. Finally, this article offers a constructive criticism of Biden administration’s newly adopted refuge policies, proposing viable legal solutions to the US-refugee dilemma.

Google v. Oracle: when innovation overwhelmed copyright law

The US Supreme Court Decision on Google v. Oracle (Google LLC v. Oracle America, Inc., US Supreme Court, No. 18–956) may well be one of the most prominent decisions of the decade, with regards to copyright law and software (and broadly, to innovation and IP laws). As the author states: This story is about changing times, about an era where a constant and voracious pace of innovation is overwhelming legal systems, and in this case, copyright law. More precisely, the US 'fair use' framework is instrumentalized by the judges aiming at achieving a much needed equilibrium between copyright law and the use of specific software features, such as API-related code (i.e. declaring code) crucial for interoperability purposes. Notwithstanding the complexity of the case and the considerable merits of such a decision, the price to pay to achieve the outcome of the case was an exceptional instrumentalization of the 'fair use' framework.

Injury, Inequality, and Remedies: Developments in Injunctive Relief and Damages in Intellectual Property Cases

While intellectual property (IP) may be more important than ever to contemporary businesses, its doctrines are becoming more sophisticated and its remedies are often difficult to obtain, especially for smaller companies and individuals. This Essay investigates the strategies utilized by IP owners to overcome challenging precedents issued in the wake of eBay v. MercExchange and Apple Inc. v. Samsung Electronics, Co., Ltd. It illustrates the complexities of these strategies via an analysis of recent developments in the law governing injunctions, royalties, lost profits, and related matters. Injunctive relief is rare even in the copyright and patent areas. In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court held that the traditional four-factor test for permanent injunctive relief applies to disputes arising under the Patent Act. The economic and policy-based considerations that drive remedial decisions tend to favor the larger, repeat players in each industry. This trend surfaces in at least three areas of remedial doctrine. First, “implementer” or “practicing” patent owners along with many copyright and trademark owners may enjoy a presumption in favor of injunctive relief absent extraordinary circumstances, or at least do not suffer from the virtual per se rule that non-practicing entities have no right to exclude. By virtue of conceptual shortcuts that help drive equitable relief decisions, they might find it easier to establish irreparable injury and no adequate remedy at law, even when they may be entitled to a windfall in statutory or treble damages. Second, the balance of hardships and public interest factors do not appear to aid small or medium-sized enterprises striving to level the playing field with well-funded, litigious infringers, as one might expect from “equity.” Lastly, firms with lucrative existing intellectual-property licensing or exploitation arrangements are better situated to show the incremental contribution of the infringed right to the respective revenue or anticipated profits of the parties.

Journalist, Advertiser or Both: Reevaluating Legal Distinctions Between Journalistic and Commercial Speech in the Networked Era

As traditional news organizations have struggled to adapt their content and financial models to networked information environments, and community journalism startups have begun to test a variety of new business and organization models, the line between journalistic and commercial expression has become opaque. This article examines the challenges emerging, twenty-first-century media organizations pose to how the courts have historically understood press and commercial-related speech protections. The article analyzes how the Supreme Court of the United States has rationalized its standards for press and commercial safeguards and considers how the Court has decided in recent cases involving citizen publishers who claimed protections historically reserved for traditional journalists. Ultimately, the article draws the building blocks from these ideas to propose how courts can separate the two types of communication in the twenty-first century. In doing so, the article also proposes ways in which such fledgling organizations can ensure they remain journalistic in nature.

Originalism Meets International Arbitration: The US Supreme Court’s Interpretation of the New York Convention

The subjection of non-signatories to arbitration agreements under the New York Convention is one of the fundamental issues of international arbitration, raising questions that touch upon the very concept of an arbitration agreement laid down in Article II. In the case of GE Energy Power Conversion v. Outokumpu, the US Supreme Court took a stand on that matter. It held that the New York Convention does not conflict with domestic law doctrines such as equitable estoppel which may bind third parties to arbitration agreements signed by others. Engaging only in an originalist interpretation of the Convention, the judgment fails to explore the normative depth of the problem. GE Energy Power Conversion v. Outokumpu, US Supreme Court, New York Convention, Non-signatory, Third Party, Arbitration Agreement, Party Autonomy, Form or Writing Requirement, Equitable Estoppel

A personal perspective and journey through DEI and STEM

Abdus Salam, a 1979 Nobel Prize recipient in Physics, once told the speaker there was a possibility of “Jazz in Physics” coming into existence when the field became more diverse. This presentation will present a personal interpretation and story on the meaning of this “puzzling” comment and how it led to a citation by the Supreme Court of the United States. Q&A will follow presentation

Maryland’s Underage Sexting Case: Punishing Revenge Porn Victims?

In 2019, the US State of Maryland’s highest court upheld the conviction of a 16-year-old minor for distributing her own ‘child pornography’ when she privately sent a clip of her performing a (completely legal) sexual act to a social media group of which only she and her two best friends were members. Considering that the child porn statute was never meant to prosecute legal and consensual sexting, this criminalization appears to be contra legem in light of the fact that the Court would not have regarded it as an offence if the girl was two years older (which does not make any difference to the legality of the sexual act since the age of sexual consent in Maryland is 16). The Court’s penalization of this act of sexting seems inappositely puritanical especially when it is noted that the convict was a victim of ‘revenge porn’ since one of the two friends leaked the clip in her school in an apparent act of revenge after their friendship ended. This paper analyses both the majority and dissenting opinions of this 2019 judgment to come to the conclusion that the majority ignores the true purport of the US Supreme Court decisions and wrongly invokes the doctrines for interpreting legislative intent to buttress its stance. As Maryland has criminalized acts of ‘revenge porn’, this article’s focus extends to examining how the Court’s failure of factoring in the effect of Maryland’s ‘revenge porn’ statute in discerning the legislative intent of the ‘child porn’ statute has produced an aberration of a statutory interpretation.

Navigating Academic Law in Competency Decisions.

Navigating Academic Law in Competency Decisions.

Introduction

The Denning Law Journal Team is very pleased to bring you the 2020 edition. In a year of unprecedent challenges and changes, we would especially like to extend our thanks to our contributors who have provided an outstanding collection of articles, comments and book reviews. We also note the passing of a distinguished jurist, Ruth Bader Ginsburg, who was an Associate Justice on the United States Supreme Court. She was the second woman to serve on the United States Supreme Court and is noted as a proponent of civil liberties. This edition of the Denning Law Journal is dedicated to Ruth Bader Ginsburg and the legacy of her work in safeguarding and promoting civil liberties.

Discovery and the Prosecutor’s Ethical Obligations - with respect to the US Supreme Court’s Brady Rule -

Discovery and the Prosecutor’s Ethical Obligations - with respect to the US Supreme Court’s Brady Rule -

Authentic style–fashion–dress negotiations of married lesbian couples on their wedding day

In 2015, a United States Supreme Court ruling allowed same-sex marriage in all 50 states. Since that time, there have been over one million same-sex marriages in the United States, and the number of same-sex marriages has increased every year (Romero, 2017). With this work, we conducted an in-depth, exploratory study on how lesbian married couples in the United States negotiated their style–fashion–dress on their wedding day. The work was guided by theory exploring authenticity as related to self-expression through appearance, and in particular, the notion that individuals mobilize a diverse array of products within the consumer marketplace to articulate an authentic identity or self. We conducted a single, semi-structured, in-depth interview with a photo-elicitation component with 10 lesbian married couples. Our analyses revealed themes that interconnected with the overarching concept of authenticity. Specifically, analyses demonstrated that, as participants sought to articulate an authentic identity through their wedding day style–fashion–dress, they often became entangled in gender and other symbolic negotiations that prompted feelings of empowerment as well as experiences of ambivalence and/or the need to engage in various forms of emotional labor or renegotiations of meaning. Four themes that emerged included (1) ambivalence, renegotiations, and labor surrounding the identity or concept of “bride” or what it means to be a bride; (2) gender expressions and experiences as central to the negotiation and construction of style–fashion–dress for the wedding day; (3) representations of the authentic self in wedding day style–fashion–dress; and (4) heteronormative experiences. Findings from the present study also revealed that lesbian couples sought to redefine what it means to be a bride/person getting married, a form of political action enacted through wedding day style–fashion–dress. Findings suggest implications for lesbian, queer, and heterosexual–focused wedding retailers and event planners to consider in order to provide an affirming experience for the increasing number of same-sex married couples in the United States.

Border-state abortions increased for Texas residents after House Bill 2

ObjectivesTo assess changes in Texas-resident border-state abortions, medication abortions, and abortions ≥22 weeks from last menstrual period (LMP) before and after implementation of House Bill 2 (HB2) in November 2013 and before and after the US Supreme Court's decision regarding HB2 in June 2016. Study designWe conducted an interrupted time series analysis using 2012-2017 data on Texas-resident abortions in Arkansas, Louisiana, Oklahoma, and New Mexico. Data on procedure type and gestational age were available only for abortions in New Mexico. ResultsBorder states reported 762 Texas-resident abortions in 2012, 1,673 in 2014, and 1,475 in 2017. Texas-resident abortions in all border states nearly doubled following HB2’s implementation (incidence rate ratio [IRR]=1.92, 95% CI: 1.67-2.20). Border-state abortions then decreased by 19% after the 2016 US Supreme Court decision, compared to the period prior to the decision and after HB2’s implementation (IRR=0.81, 95% CI: 0.73-0.91). From 2012 to 2014, the proportion of Texas-resident abortions in New Mexico that were medication abortion increased from 5% to 20% (p < 0.001) and the proportion that were ≥22 weeks from LMP decreased from 40% to 23% (p < p<0.001). Texas vital statistics undercounted annual out-of-state abortions, reporting only 13%-73% of abortions reported by border-state clinics during the study period. ConclusionsHB2 was associated with increases in border-state abortions for Texas residents, including in the number of those ≥22 weeks from LMP. Border-state abortions declined after the Supreme Court ruled HB2 unconstitutional yet remained higher than pre-HB2 levels. Implications statementAbortion restrictions that severely curtail access may result in increases in travel out of state for care. Documenting out-of-state abortions is important for evaluating broader policy impacts and to prepare for future service disruptions. Texas residents may have more limited options for care if border states enact restrictive abortion laws.