I served with Judge Neil Gorsuch on the Court of Appeals for the Tenth Circuit for over three years, before I left the bench to teach constitutional law at Stanford. I sat with him in about fifty cases. Sometimes we disagreed, strongly. More often, we agreed. I want to share my impressions of Judge Gorsuch…
Introduction On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, and whom the press…
Introduction This Essay examines how Judge Gorsuch, if confirmed, would approach religious freedom cases. It first looks at two free exercise cases Judge Gorsuch has participated in. Then it extracts principles from those cases and from his other writings that help explain how a Justice Gorsuch might contextualize religious freedom claims. Finally, it applies those…
Introduction The proper meaning of the Establishment Clause has sharply divided the Court for decades. Nowhere is this more obvious than in cases dealing with the constitutionality of religious displays. The Court has held that it is unconstitutional, for example, for a city to display a holiday crèche (a Nativity scene) if it stands alone.…
Introduction Before Justice Scalia, pragmatic balancing tests dominated the Court’s Fourth Amendment doctrine. But by 2008, Justice Scalia had succeeded in reframing the Court’s analysis. In an opinion joined by seven other Justices, he wrote: “In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common…
Introduction Whatever openness to the claims of criminal defendants Supreme Court nominee Judge Neil Gorsuch may have displayed in his Fourth Amendment decisions finds no counterpart in his opinions touching on Sixth Amendment rights. In each of the four cases in which Judge Gorsuch has dissented on Sixth Amendment grounds, his desired holding would have…
Introduction If the first couple of months of the Trump Administration are any guide, immigration will be front and center before the Supreme Court in coming terms. How a future Justice Gorsuch might rule on the thorny questions of administrative law, due process, and executive power that these cases raise will turn on how much…
Introduction Upon the announcement of his nomination to the United States Supreme Court, Judge Gorsuch said that “[a] judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.” This notion is central to his jurisprudence. Judge Gorsuch hews closely to a…
Introduction In the wake of Tenth Circuit Judge Neil Gorsuch’s nomination to the Supreme Court, there has been much buzz about his 2016 dissent in a case involving a seventh grader arrested for burping during gym class. The Tenth Circuit shielded the arresting officer from suit, granting him qualified immunity. Judge Gorsuch disagreed: “Respectfully, I…
Introduction When it comes to Judge Gorsuch’s views on administrative law, the focus has been on one opinion—his concurrence in Gutierrez-Brizuela v. Lynch. In addition to authoring the majority opinion, Judge Gorsuch concurred separately to air concerns over Chevron’s rule requiring courts to defer to the judgments of executive agencies. “We managed to live with…
Introduction With a career spanning the Justice Department, private practice, and the bench, Judge Gorsuch would bring to the Supreme Court an antitrust background comparable to that of former Justice John Paul Stevens. His background demonstrates a suspicion of unilateral theories of liability and a preference for bright-line rules that points to him leading the…
Introduction Numerous commentators argue that, if confirmed, Justice Neil Gorsuch would follow the late Justice Antonin Scalia’s signature methodological contributions: originalism and textualism. Indeed, Judge Gorsuch styles himself as a judge in Justice Scalia’s vein. In a tribute to the late Justice, he responded to Justice Scalia’s critics by arguing that “an assiduous focus on…
Introduction What consequences will the 2016 election have for employment and labor law? President Trump’s potential policies are uncertain, especially given Andrew Puzder’s withdrawal and Alexander Acosta’s nomination as Labor Secretary. Consequently, Supreme Court nominee Judge Neil M. Gorsuch’s past Tenth Circuit decisions may be increasingly of interest. This Essay presents a brief overview of…
I. American Pipe Tolling and the Problem of Protective Filings In American Pipe & Construction Co. v. Utah, the Supreme Court wisely rationalized class action law and policy under Rule 23 by holding that the filing of a class action complaint “suspends the applicable statute of limitations as to all asserted members of the class…
Days after the release of the mobile game Pokémon Go, a privacy flap ensued from press reports revealing that users on Apple phones who logged in through a Google account had unwittingly granted the developer, Niantic, access to their entire Google account. Moreover, the application’s (app’s) privacy policy allowed Niantic to disclose any information it…
“If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidœ on our hands.” —Douglas Adams Introduction In August 2016, Uber startled the world by announcing that its customers would soon have a small chance of…
Introduction On October 5, when the U.S. Supreme Court hears Salman v. United States, it will focus on the role of the “personal benefit” test in insider trading law for the first time since the test was established in the now iconic 1983 case Dirks v. SEC. Dirks reaffirmed the principle that trading on the…
The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason…
Introduction This fall, the U.S. Supreme Court will hear argument in Salman v. United States to consider the scope of insider trading liability under the federal securities laws. Specifically, the Court will consider the legal standard for tippee liability, a standard that it first articulated in its 1983 decision in Dirks v. SEC. Dirks considered…
I. The Issues in Salman If Maher Kara, the Citigroup analyst at the center of the Salman case now before the Supreme Court, was forbidden under SEC Rule 10b-5 from trading securities for his own account while in possession of the valuable secrets to which his job gave him access, should he instead be able…
