The Supreme Court’s 2016 term officially begins on the first Monday in October. But corporate insiders, securities analysts, and professional traders (as well as securities lawyers and scholars) are focusing their attention on Wednesday, October 5, when the Court, for the first time in nearly two decades, will hear argument in an insider trading case.…
Introduction On June 23, 2016, the Supreme Court announced its much-anticipated decision in Fisher v. University of Texas at Austin, allowing affirmative action in college admissions to continue. No single feature of Fisher surprised court watchers more than its author, Justice Anthony Kennedy. As Richard Primus wrote in the New York Times: “[T]he most deceptive…
In Against Data Exceptionalism, Andrew Keane Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests,…
Introduction This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces (ASF) against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense (DOD) policy for reporting law of war (LOW) violations and hinges on when sexual assault…
Introduction The Supreme Court’s recent decision in Federal Energy Regulatory Commission v. Electric Power Supply Association (EPSA) may ultimately rank among the most significant energy law cases of all time. Unsurprisingly, the case has received considerable attention within legal circles and even within the popular press. EPSA upheld one of the Federal Energy Regulatory Commission’s…
Introduction This election cycle, CNN’s Republican presidential debates have twice violated campaign finance law, specifically by failing to issue invitations based on “pre-established objective criteria.” These violations went unpunished, not because of the ineptitude of the regulators, but because of the absurdity of the regulation violated, which presumes that television debates violate campaign finance law,…
Introduction What does “because of race” mean in an antidiscrimination statute like the Fair Housing Act of 1968 (FHA)? The question arose last Term in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the case in which the Supreme Court recognized a disparate impact cause of action in the FHA. In…
Introduction In November, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, one of the Term’s most talked-about cases. The case presents a relatively unsympathetic plaintiff, Thomas Robins, and the prospect of sizeable class action damages. That combination may explain why one particular narrative has become popular in both mainstream media and legal-industry press…
Introduction The Supreme Court recently surprised many observers by upholding disparate impact claims under the Fair Housing Act (FHA) in a case called Inclusive Communities Project. Justice Kennedy’s majority opinion ratcheted down the hostility to disparate impact analysis recently on display in his Ricci v. DeStefano opinion and in other earlier opinions he had joined.…
Among the most prominent examples of government speech is a state’s choice to fly—or not to fly—the Confederate flag above or adjacent to its capitol. The recent vigorous public debates in South Carolina and elsewhere across the country reveal the potential power of governments’ expressive choices, including their power to inform, celebrate, cajole, wound, and…
Introduction In both Bond v. United States and Yates v. United States, the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In…
Introduction The Supreme Court recently granted certiorari in Montgomery v. Louisiana to determine whether the Court’s holding in Miller v. Alabama, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” applies retroactively to cases on collateral review. That question is important in its own…
This Essay is a response to Pamela K. Bookman’s Litigation Isolationism.
Introduction In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case—MadStad Engineering, Inc. v. U.S. Patent & Trademark Office—uncoils as a pleasing syllogism: the AIA transitioned…
Introduction Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay…
Introduction In The Fourth Amendment and the Global Internet, Orin Kerr highlights several important Fourth Amendment questions that few courts have addressed. But in “offer[ing] a general framework for applying the Fourth Amendment to a global computer network in a way that maintains the existing territorial conception of the Fourth Amendment,” Kerr’s article focuses too narrowly…
Introduction In June the U.S. Supreme Court will decide Glossip v. Gross, a challenge to Oklahoma’s lethal-injection protocol brought by three death row inmates. The inmates argue that the protocol’s first drug, midazolam, violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it does not reliably induce unconsciousness. Midazolam’s inadequacy, they claim, could…
Introduction The motel’s neon vacancy sign lures the weary traveler from the freeway. She enters and inquires after a room. The receptionist, without looking up from his crossword, slides a clipboard across the front desk. An application? When did motels become prep schools? The traveler scribbles in the requested information. Name: Monique Jackson. Reason you…
Introduction Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary. —Reinhold Niebuhr Fifty years after the passage of the Voting Rights Act (VRA), legal controversies surrounding voter identification, early voting, voter registration, campaign finance, and redistricting continue to raise fundamental questions that, when answered, inform a theory of democracy.…
Introduction On November 4, 2014, more than 21,000 Kansans who had attempted to register to vote were denied that opportunity. The cause? A law that went into effect in January 2013 requiring that registrants provide proof of citizenship. Kansas’s law is only one of the most recent examples of this country’s general trend toward stricter…
