Tag: Supreme Court

Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court

Aaron-Andrew P. Bruhl - University of Houston Law Center

Is statutory interpretation an activity that all courts should, in principle, perform the same way?  Or should methods of statutory interpretation systematically vary depending on which court is doing the interpreting?
Courts and commentators overwhelmingly assume that interpretive methods should be essentially homogeneous across courts.  Moreover, they treat the United… Read More »

Judicial Ghostwriting: Authorship on the Supreme Court

Albert Yoon & Jeffrey Rosenthal

Justice Louis Brandeis once wrote, “The reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work.”  It is remarkable to think that each year, each justice is responsible for evaluating over seven… Read More »

The Solicitor General of the United States: Tenth Justice or Zealous Advocate?

Adam D. Chandler

The federal government loses hundreds of cases in the federal courts of appeals each year, but the Solicitor General selects only a handful of those cases—just fifteen or so—to petition the Supreme Court to review. Acting as the final “decider” on the overwhelming majority of federal appeals, the Solicitor General… Read More »

Coming off the Bench: Legal and Policy Implications of Proposals To Allow Retired Justices To Sit By Designation on the Supreme Court

Lisa McElroy & Michael C. Dorf

In her first term as an Associate Justice of the Supreme Court of the United States, Elena Kagan recused herself from roughly one-third of the cases on the Court’s docket. Although Justices do not typically divulge their grounds for recusing, the reason for all of these recusals was obvious: Kagan… Read More »

The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Jonathan F. Mitchell - George Mason University School of Law

The Supreme Court deems itself powerless to reverse a state supreme court solely on state-law grounds. As a result, whenever anyone asks the Supreme Court to review a state court’s ruling, the litigants and justices proceed as though the only options are to reverse on federal constitutional grounds or allow… Read More »

Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain… Read More »

Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance

Jonathan F. Mitchell - George Mason University School of Law

State supreme courts occasionally issue questionable interpretations of their states’ statutes, constitutional provisions, or other laws. Sometimes this reflects home-town favoritism or bias against out-of-state parties. On other occasions, state-court judges use their interpretive power over state law to combat political movements that they oppose. During the 1950s and 1960s, for… Read More »

Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights

Risa Goluboff - University of Virginia School of Law

Historians spend a lot of time in archives, and much of what they find, in its original form, would likely engage, no one but themselves. Every so often, however, they find documents—letters, memos, draft opinions—that might be of interest to a broader audience. Such discoveries are the impetus for this… Read More »

Disparate Impact

Girardeau A. Spann -Georgetown University Law School

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the nation from its unfortunate racist past to a more admirable post-racial present in… Read More »

Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System

Laura K. Klein

That some religious beliefs clash with the gay rights movement is undeniable. When these interests conflict in the form of litigation and both sides adopt the rhetoric of rights, the resulting rights clash challenges the United States legal system’s ability to come to a principled result. While the public views… Read More »

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