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Controlled substances hold a special place at the intersection of medicine, law, and society. No decisions are as fraught with peril in medicine than whether, how, how much, and for how long to prescribe controlled substances, especially during an opioid crisis. These decisions implicate not just the benefits and risks to the patients to whom drugs are prescribed, but also the risks to third parties who use diverted drugs without medical supervision. The later consideration is as far as Congress intended federal law enforcement to reach into the regulation of medical practice, an area that falls squarely within the States’ police powers. The Eleventh, Fourth, and Tenth Circuits have recently construed the CSA in a manner that permits the government to convict a prescriber of a felony for nothing more than deviations from accepted medical standards, including behavior akin to mere negligence. These circuits have criminalized prescribing negligence by (1) permitting convictions when prescriptions deviate from accepted medical practices without considering whether the practitioner acted without a legitimate medical purpose (also referred to as “beyond the bounds of medical practice”), and (2) constructively refusing to extend to practitioners a good faith defense. These approaches criminalize mistaken or negligent prescribing for which there are already myriad civil, administrative, and even lesser criminal remedies. The constructive rewriting of the CSA as applied to practitioners runs afoul of the text and purpose of the CSA, conflicts with this Court’s controlling case law, imperils the evolution of medicine and patient care, and implicates significant federalism concerns. We respectfully request that this Court clarify that the CSA’s reach only extends to practitioners who prescribe knowingly or intentionally (i.e., not in good faith) without a medical purpose outside the usual course of professional practice. The questions implicated by the instant petition and those in United States v. Naum, No. 20-1480, are what the government must prove to convict a prescribing practitioner under CSA Section 841(a)(1). Consequently, this Court should consolidate the instant petition and Naum and grant certiorari in both cases.

This paper investigates stock and option market reactions to judicial events in the United States Supreme Court (SC) relating to cases where at least one party involved is a public firm. Using a comprehensive dataset of more than 500 SC cases from 1948 to 2018, we find that the stock market reacts to both the grant of certiorari and to the announcement of the final decision, suggesting that the stock market could not anticipate the SC actions. We also find that case-specific characteristics, such as parties involved, the type of legal issue, and press coverage explain some of the cross-sectional variations in the stock returns across cases. Our tests indicate that there is no information leakage prior to the events and no stock price drift after the events. Finally, we find some evidence that the option market anticipates the final decision as early as the date certiorari is granted, reinforcing the theory that smart money comes early to the option market.

This statement addresses the topic of case selection and review at the Supreme Court. It considers the decline in cases on the Court's regular docket, and how that is related to views of precedent. It also considers the increase in high-profile cases on the Court's "shadow docket," and analogizes the shadow docket to the preliminary injunction.

This article provides extended summaries and (separately) the author's take on every employment and labor law decision rendered by the Supreme Court during its most recent term. Also covered in this piece are abbreviated reviews of all grants of certiorari for the upcoming term and short summaries and analyses of all other employment-related opinions published by the Court this term, including those on the so-called shadow docket portion of the orders lists. The article concludes with additional commentary on the work of the Supreme Court as it affects the labor and employment law sector.

On February 22, 2021, the Supreme Court of the United States issued an order list denying certiorari in two cases below seeking to define truth. There exists within the False Claims Act (“FCA”) context a question of whether the statutory element of “falsity” in making out an FCA claim extends to medical “opinions.” Some courts have adopted the objective-falsity standard, which posits that only hard indicia, such as empirical data, are subject to falsifiability. Other courts have adopted legal, or common-law, falsity which includes objective falsity but adds liability for misrepresented legal compliance. Unsurprisingly, this is a niche issue with virtually no scholastic development. The manuscript makes the following findings: (1) the common law clearly supports that medical opinions are subject to falsifiability on broader grounds than objective falsity posits; (2) medical “opinions” are actually more characteristic of statements of fact; (3) comparative litigation in other realms of medicine routinely invite the falsifiability of medical opinions by factfinders; and (4) that advocates’ concerns of legal falsity increasing liability under the FCA thus amounting to nonstop bet-the-business litigation are unfounded. The Supreme Court must eventually provide guidance, and given the high stakes of FCA litigation, the few parties who do go to trial are heavily incentivized to appeal ad infinitum. This area of law is scholastically anemic, and this manuscript seeks to end that by walking through the required path of the law for judges, practitioners, and would-be defendants to ensure greater congruence between conduct and the rule of law.

Pending before the Supreme Court of the United States is a certiorari petition in a case entitled Kansas Natural Resources Coalition v. U.S. Department of Interior (KNRC). KNRC involves the issue of whether an agency’s refusal to comply with the requirements imposed on agency rulemaking set forth in a federal statute known as the Congressional Review Act (CRA) is subject to judicial review. By a 2-1 vote, the Tenth Circuit ruled that the CRA forecloses judicial review of an agency’s failure—or refusal—to comply with the requirements of that statute. That issue is of considerable legal, practical, and policy importance—and the Tenth Circuit majority got it wrong. A defendant can raise as a defense in an administrative or civil action, and in a criminal prosecution, the defense that the rule on which the agency relies has not gone “into effect,” as the CRA provides, because the agency did not submit the rule to Congress, for its review. If so, a potential defendant can bring an action under the Administrative Procedure Act to have the agency’s rule held invalid without needing to wait for the “hammer” to fall, as a unanimous U.S. Supreme Court held in Sackett v. EPA. It is impossible to believe that Congress ordered the courts to “see no evil” by an agency, or that it matters whether a private party raises that claim in an answer or a complaint. When read as a whole, the CRA and the APA permit the courts to call out an agency for breaking the law.

Summary of Argument: This Court should grant certiorari in this case in order to resolve splits among the federal circuits and state courts of last resort and to correct decisions which conflict with this Court’s historical understanding of the right against self-incrimination. In the compelled decryption cases, courts not only disagree about how this Court’s self-incrimination doctrine should be applied, they also disagree about whether the Fifth Amendment right against self-incrimination prohibits the government from compelling a person to speak, write or otherwise communicate pure testimony of an incriminating nature. This confusion stems from this Court’s decision in Fisher v. United States, 425 U.S. 391 (1976) and its concept of “testimonial communications.” This case is an excellent vehicle for this Court to resolve the confusion and clarify its decision in Fisher because the decision below, and all compelled decryption cases, are united by their application of Fisher’s framework. Moreover, compelling decryption also compels the creation of pure testimony, whether spoken, written or otherwise. As a result, the compelled decryption cases and the case below are also united by the question of whether the Fifth Amendment prohibits the compulsion of pure testimony. State v. Andrews, 243 N.J. 447, 480–81 (2020). Further, the decision below has decided important questions of federal law in a way that conflicts with relevant decisions of this Court. This Court’s current and historical understanding of the right against self-incrimination has always aligned with its common law origins, under which the Fifth Amendment prohibits the government from subjecting a person to the cruel trilemma of telling the truth and accusing oneself, committing perjury, or declining to answer and being held in contempt. Pennsylvania v. Muniz, 496 U.S. 582; 596–97 (1990). The decision below applied Fisher but contradicted this Court’s clear instruction by compelling Petitioner to choose between self-accusation through decryption, perjury, or contempt for failing to comply. The compelled decryption of digital devices also contradicts this Court’s unequivocal recognition that exposing the contents of a cell phone or computer to the government is more harmful to privacy than even “the most exhaustive search of a house.” Riley v. California, 573 U.S. 373, 396 (2014); Carpenter v. United States, 138 S. Ct. 2206 (2018). Compelled decryption, moreover, exposes the entirety of a device to the eyes of the state. The confusion, splits, and contradictions with this Court’s precedent are certain to continue if Fisher is not reexamined.

A primary role of the Supreme Court is to resolve conflicts among the federal courts of appeal. When the split concerns the federal sentencing guidelines, however, the Supreme Court has ceded this role to the U.S. Sentencing Commission, effectively allowing the Commission to act as the court of last resort in this context. As then-Judge Alito recognized, “no other federal agency—in any branch—has ever performed a role anything like it.” This anomaly has largely escaped academic attention because the Court’s abdication comes in the form of certiorari denials, which are buried in the Court’s long order lists. But the consequences of the Court’s refusal to review splits involving federal sentencing policy—referred to here as “sentencing guidelines abstention”—cannot be ignored. Sentencing guidelines abstention perpetuates uncertainty and wide-ranging sentencing disparities, meaning the length of a federal defendant’s sentence will depend on the happenstance of where the defendant is sentenced. The principled and fair administration of justice cannot tolerate such ambiguity and randomness. This Article argues that there is no sound basis for sentencing guidelines abstention. It outlines reasons—grounded in precedent, congressional intent, administrative law principles, and practical considerations—why the Court should reassume its traditional role of resolving federal sentencing guideline splits, provide uniformity and consistency to the federal judiciary, and contribute thereby to the development of a reasoned and coherent federal criminal justice system.

The U.S. Supreme Court interpreted the provision in Lanham Act that provides remedies to "any person who believes that he is or will be damaged," The Court set forth a two-prong test tied to the Act that should be used to assess whether a statutory "person" can seek remedies. The Fourth Circuit followed the Court's decision and applied the test to petitions to cancel trademarks. The Federal Circuit used a "real interest" and "reasonable belief" approach, which the Supreme Court criticized. A petition for certiorari will be filed which asks for the Court to resolve this conflict between the Circuits on a threshold issue of federal statutory law. The petition for certiorari is no. 20-1309 on the docket of the Supreme Court of the U.S.

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”

Trademark law limits the extent and manner to which individuals can use a surprisingly large percentage of common words in the English language. In assessing the resulting discord from such a conflict, a court has several measures by which it can determine the metes and bounds of the First Amendment’s priority over trademark law; in the case of an expressive or artistic work which uses the trademark of another (or the name of an individual), one such test that has developed is the Rogers test, named for a 1989 lawsuit involving the actress and dancer Ginger Rogers. This article examines the most recent development in the ever-expanding ambit of the Rogers test: the Ninth Circuit’s recent decision in VIP Products LLC v. Jack Daniel’s Properties, Inc. First, this article summarizes the policy goals and purposes of trademark law, provides a brief overview of the Lanham Act’s false endorsement right of action and of trademark dilution, and synopsizes both Rogers v. Grimaldi and the development of the Rogers test in the Ninth Circuit. It then analyzes the Jack Daniel’s v. VIP Products district court and appellate decisions, and considers the consequences of the Ninth Circuit’s decision. In its opinion, the Ninth Circuit not only stretched the purpose of the Rogers test to a breaking point, but also improperly relied upon the test’s basic premise as grounds to incorrectly dispose of a claim for trademark dilution, despite the different standards, purposes, and policy goals of trademark infringement and trademark dilution statutes; the consequences of such precedent going forward are yet to become clear. Finally, the article concludes by considering how to remedy the ever-increasing scope of the Rogers test in Ninth Circuit jurisprudence, and reflects on the potential effects that VIP Products could have on future trademark false endorsement claims. As a whole, the Ninth Circuit’s decision in VIP Products is distinguished by its overly expansive view of the Rogers test and its misunderstanding of the fragile balance between the First Amendment and trademark dilution law. As the Supreme Court has denied certiorari, there is little to no chance to correct the faulty decision itself. Were the Ninth Circuit to reform its understanding of Rogers to conform with its restricted application in its home circuit, the Second Circuit, perhaps some of the more pernicious consequences of VIP Products could be avoided. Nevertheless, short of the panel’s decision sua sponte to issue an amended opinion, the consequences of this case are likely to be widespread in Ninth Circuit jurisprudence, and will significantly curtail the trademark rights of mark holders for years to come.

New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.

This petition for a writ of certiorari to the U.S. Supreme Court asks the Court to review the issue of whether the Crime Victims’ Rights Act (CVRA) required federal prosecutors confer with victims of Jeffrey Epstein before concluding non-prosecution agreements (NPA) with him. The petition arises from a NPA federal prosecutors in Florida reached with Epstein—blocking not only his prosecution for federal sex crimes but also that of his co-conspirators. The prosecutors never conferred with the victims about the non-prosecution agreement. After years of litigation about the validity of the secret NPA, the case reached the Eleventh Circuit. The Circuit ruled in an en banc decision, 7-4, that the CVRA does not give victims the ability to enforce their rights in court until the Justice Department formally files federal charges. This certiorari petition argues that the important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the government to secretly conclude pre-indictment NPAs with targets of federal investigations warrants immediate review. Because such arrangements are, by definition, secret, other circuits may never be able to speak to the legality of such resolutions. Leaving the issue to percolate means that the Justice Department will be free to dispense with victims’ rights and orchestrate clandestine deals without affording victims any rights under the CVRA. The Supreme Court may well face a now-or-never opportunity to review the important question of whether the CVRA permits such secrecy. In addition, the illegitimacy of the Justice Department’s practice of covertly and deceptively arranging non-prosecution deals is far too serious for the Supreme Court to wait to see what other circuits might say. The Eleventh Circuit’s decision guts victims’ rights under the CVRA. Such a dubious interpretation runs counter to the statute’s plain language, which Congress designed to create a comprehensive bill of rights for crime victims—with enforceable rights.

Notwithstanding the clarity of the U.S. Constitution’s grant of authority to Congress “[t]o promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries,” U.S. Const. Art. I, § 8, cl. 8, and Congress’s directive that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title,” 35 U.S.C. § 101 (emphasis added), current § 101 jurisprudence conflates patent eligibility with the substantive requirements set forth in § 103 and § 112 and is getting more confusing by the day. There is no patent law doctrine more in need of clarification. The Federal Circuit’s 6-6 split resulting in the denial of rehearing en banc in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC et al., 966 F.3d 1347 (Fed. Cir. 2020), is just the latest example in a long series of cries for help in interpreting § 101. See, e.g., Berkheimer v. HP Inc., 890 F.3d 1374, 1374 (Fed. Cir. 2018) (Lourie, J., with Newman, J. concurring in denial of rehearing en banc) (expressing that patent eligibility law “needs clarification by higher authority, perhaps by Congress, to work its way out of what so many in the innovation field consider are § 101 problems”). We add our voice to the chorus calling for the Supreme Court and/or Congress to clarify and/or reform patent eligibility jurisprudence. In setting forth a new test of patent eligibility, the panel decision mischaracterized fundamental patent principles and case law on which the modern patent system is built. The claims of the patent in suit present a conventional problem of compliance with the statutory patentability requirements of § 112, which sets forth the requirements of disclosure and claim definiteness. The panel opinion instead forces this case into the § 101 mold, which dispenses with the customary factual predicates for § 112. In so doing, the panel radically altered and expanded the already confused contours of § 101 jurisprudence. Moreover, the panel’s holdings were based on a serious misinterpretation of patent law’s foundational cases, and run counter to this Court’s long insistence that the statutory requirements of § 112 and its predecessor statutes provide the standards to assess whether claims are functional or overbroad. With this latest expansion, the atextual doctrine of patent eligibility threatens to supplant the traditional tests of patentability established by the 1952 Act. The Federal Circuit’s deep split in American Axle presents an excellent vehicle for clarifying the interplay of § 101 and § 112 of the Patent Act.

The abortion debate has escalated once again, taking on a new urgency in the wake of the Supreme Court’s granting certiorari in Dobbs v. Jackson Women’s Health Organization and denying emergency relief in Whole Woman’s Health v. Jackson. In Dobbs, the Court agreed to reconsider Roe’s “essential holding,” determining whether pre-viability bans on abortion remain unconstitutional. In Whole Woman’s Health, a majority of the Court declined the request to enjoin a Texas statute banning abortions at roughly six weeks, thereby permitting the law to go into effect. Supporters of abortion rights understandably worry that Whole Woman’s Health indicates that in Dobbs a majority of the Court will overturn or severely limit Roe. In defense of Roe and its progeny, these individuals frequently invoke Casey and stare decisis to justify retaining Roe’s viability standard, which has held sway for almost half a century. What these supporters do not do is adopt Roe’s constitutional analysis—and for good reason. As this article explains, Roe’s argument in support of viability rests on seven informal fallacies and at least one formal fallacy. While commentators on both sides of the abortion debate have highlighted problems with Roe’s reasoning, none has undertaken this type of detailed argument reconstruction. A careful review of Roe’s reasoning reveals that Casey’s use of stare decisis to preserve Roe is a Potemkin village—a tribute to a longstanding precedent that, when scrutinized, is seen to lack a constitutional foundation. That Roe’s constitutional argument is severely wanting bears directly on the stare decisis analysis in Dobbs in two important ways. First, a key factor for the Court when determining whether to overrule a prior decision is the quality of the reasoning in the earlier case. Regardless of one’s views on abortion, Roe was poorly reasoned. Its viability standard is not predicated on the Constitution’s text, original meaning, or general purposes. As this article explains, it is grounded in a series of fallacies that do not support its holding. Thus, if the Respondents in Dobbs parrot Roe’s argument, they are apt to lose before the current Court. Second, if those defending Roe advance new arguments to supplement its reasoning, they should worry that the Court may not apply stare decisis at all. As Chief Justice Roberts explained in Citizens United, stare decisis is “a doctrine of preservation, not transformation.” If those defending Roe present novel arguments, the Court need not (and perhaps should not) defer to those arguments because the Court would be considering them for the first time.

The Supreme Court has wide discretion to choose the cases it will decide. These choices matter, as they both shape and are shaped by our national social, political, and economic discourse. So how does the Court exercise its discretion? The Supreme Court’s rules explain that it may hear any case “important” enough for it to decide. Unsurprisingly, commentators have criticized this standard as “murky,” “cryptic,” “hopelessly indeterminate,” and even “intentionally vague.” But the Court has, in fact, said more about how it decides whether to grant review. We simply must look past the terse text of the Supreme Court Rules and to the Court’s merits opinions. These decisions sometimes offer a brief yet informative description of the decision to grant review. In these oft-overlooked statements, the Court sometimes suggests that review is founded on concerns for comity among the branches, or aimed at structuring intrajudicial authority, among other rationales. Viewed in aggregate, these statements are suggestive of trends in the exercise of the Court’s docket-setting discretion. In this article, I present a text and data analysis of thousands of Supreme Court opinions describing the reason for granting review, collectively illuminating which cases are important enough to merit certiorari. This view into the Court’s agenda-setting process is revealing. We can begin to discern which cases earn the Court’s attention, and how the Court’s priorities change over time. I find, for example, that the Court’s docket shifts in response to large events (e.g., depressions and wars) and to significant political developments (e.g., landmark legislation). And, perhaps more concerning, I also find that individual appointments shape the Court’s docket. The Court should thus better explain its decisions to grant review in the mode of a common law of certiorari. Doing so can improve the interbranch dialogue over judicial reform and instill greater confidence in our Supreme Court.

This paper presents an estimation of ideal points for the Justices of the Supreme Court of Spain in the specific area of administrative review for the period 2000-2008. The estimated ideal points allow us to identify political clusters in the Supreme Court which seems inconsistent with the formal and traditional views that a career judiciary is not strongly politically aligned and favors consensus, formalism and dissent avoidance. We suggest that our empirical analysis mitigates the myth of political insulation by career judges.

Amicus Brief for a petition for a Writ of Certiorari in Support of Petitioner Zuckerman, as Ancillary Administratrix of the Estate of Alice Leffman v. The Metropolitan Museum of Art.

Forensics are a staple of modern criminal trials, yet what restrictions the Confrontation Clause places on forensic reports is entirely unclear. The Supreme Court’s last decision on the issue, Williams v. Illinois, sowed widespread confusion among lower courts and commentators, and just this past Term, Justices Gorsuch and Kagan dissented to the denial of certiorari in Stuart v. Alabama, a case that would have revisited (and hopefully clarified) Williams. Our Essay attempts to dispel the confusion in Williams v. Illinois. We argue that Williams involved three difficult and intertwined evidentiary questions: i) when experts may use inadmissible evidence as the basis of their opinions under Rule 703; ii) whether Rule 703 itself is consistent with the Confrontation Clause; and iii) whether reports that arise out of rigorous scientific processes implicate the Confrontation Clause at all. Along the way, we show that the answers to these questions help predict the future of the Confrontation Clause and offer a potential tool for improving forensic science.

This Court should reverse the judgment of the U.S. Court of Appeals for the Tenth Circuit in Colorado Dep’t of State v. Baca. The Tenth Circuit abused its discretion in reaching the merits of Respondent Micheal Baca’s constitutional challenge to Colorado’s faithless elector law, since he lacked a valid cause of action under 42 U.S.C. § 1983. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The constitutional avoidance doctrine requires federal courts to avoid adjudicating unsettled constitutional issues when a case can be fully resolved on other, nonconstitutional grounds. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). This principle applies even where the parties themselves have not raised the alternate, non-constitutional issue. Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam). The Tenth Circuit erred by adjudicating the merits of Respondent Baca’s constitutional claim rather than dismissing it under § 1983. Additionally, this Court has recognized that Congress has primary constitutional authority for creating damages remedies for constitutional violations. Bush v. Lucas, 462 U.S. 367, 388-90 (1983). In FDIC v. Meyer, 510 U.S. 471, 486 (1994), this Court refused to create a cause of action to allow plaintiffs to sue federal agencies for damages for constitutional violations. By allowing Respondent Baca’s claim to proceed, the Tenth Circuit allowed such a suit to proceed against a state agency, despite the lack of statutory authorization. Finally, by adjudicating Respondent Baca’s constitutional challenge based on a non-existent cause of action, the Tenth Circuit issued a gratuitous advisory opinion. U.S. Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 447 (1993); see, e.g., California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893); cf. Muskrat v. United States, 219 U.S. 346, 348-51 (1911). For these reasons, this Court should conclude that the Tenth Circuit abused its discretion in reaching the merits of Respondent Baca’s constitutional claim. With the Tenth Circuit’s ruling set aside, this Court should dismiss the writ of certiorari in Chiafalo v. Washington as improvidently granted, since there would no longer be a split in authority requiring resolution by this Court. In the alternative, this Court should vacate both lower courts’ judgments under the political question doctrine. The Constitution assigns Congress responsibility for counting electoral votes. See U.S. CONST. amend. XII; 3 U.S.C. § 15. As part of that authority, Congress is entitled to determine for itself the validity of electoral votes cast pursuant to states’ faithless elector laws. Cf. Nixon v. United States, 506 U.S. 224 (1993); Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Moreover, due to Congress’ constitutional power to count electoral votes, a judicial ruling on the merits in this case creates the possibility that different branches of the federal government will reach different conclusions concerning the constitutionally required outcome of future presidential elections. The identity of the duly elected President, however, is an issue on which the nation has a compelling need to avoid “multifarious pronouncements by various departments.” Baker v. Carr, 369 U.S. 186, 216 (1962). Should this Court reach the merits of the faithless elector issue, however, it should affirm the Supreme Court of Washington’s judgment in Chiafalo and reverse the Tenth Circuit’s judgment in Baca. Faithless elector laws are a valid implication of this Court’s holding that a state legislature’s decision to appoint presidential electors based on the outcome of a statewide popular vote triggers voters’ fundamental constitutional right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Recognizing a “fundamental” constitutional right to vote for President would be a hollow formality if a state’s electors could assert a constitutional prerogative to cast their electoral votes for a candidate who had lost the popular vote within that state—or potentially did not even participate in that state’s presidential election at all.

Whether and why the Supreme Court agrees to hear cases is among the most important—and well studied—topics in American politics. However, existing theories have overlooked a key player: the advocates. We develop and test a new theory that explicitly incorporates advocates in explaining which cases the Supreme Court is likely to accept. Specifically, we theorize that cert petitions are most likely to be successful when (1) there is great ideological distance between the opposing advocates and (2) the lower-court panel is closest ideologically to the advocate who won at the lower-court level. In these cases, as we explain, the advocate petitioning the Supreme Court to intervene becomes the “Odd Party Out,” a cue that conveys important information about the probability of bias as well as the political importance of the case. We test this theory using a new dataset on the identities and ideologies of advocates and judges. We find strong support for our theory: cert petitions are significantly more likely to be granted when the advocate appealing to the Court is an ideological outlier—that is, when the petitioner is in opposition to an ideologically aligned respondent and lower-court panel.

This article offers a review of and commentary on every opinion of the Supreme Court of the United States in each case relating to employment and labor law during the Court's 2019-2020 Term. The article also briefly summarizes the Court's grants of certiorari for its 2020-2021 Term relating to employment in the American workplace. In addition to the author's commentary on each case, the article includes a broader look at how the Court is dealing with workplace jurisprudence, including references to its "shadow docket" and the assignment of majority opinions.

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption—evidence of a current witness’s prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.

The Supreme Court recently granted certiorari in United States v. Arthrex. In that case, the Court of Appeals for the Federal Circuit held that administrative patent judges are principal officers of the United States under the Appointments Clause, and therefore must be appointed by the President and confirmed by the Senate. This note provides a critique of the Federal Circuit’s opinion in Arthrex by arguing that the Federal Circuit misunderstood the substance of the three-part test articulated by the Supreme Court in Edmond v. United States.

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

In Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, the Supreme Court granted certiorari to consider the interpretation of the “arise out of or relate to” requirement in the Court’s specific personal jurisdiction jurisprudence. This brief explains the distinct purposes that the different parts of specific personal jurisdiction jurisprudence serve. The brief also explains that Petitioner’s interpretation of the “arise out of or relate to” requirement improperly conflates two aspects of the Court’s jurisprudence: the first, which considers the defendant’s connection to the forum, and the second, which considers the forum’s interest in adjudicating claims.

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence. The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even more challenging, without any corresponding benefit. In domestic violence cases, there is rarely direct evidence of specific intent, and domestic-violence victims often struggle to confront their abusers in court. Indeed, the impact of abusers’ psychological, emotional, and physical abuse is often so severe that victims frequently struggle even to seek help. The Kansas Supreme Court’s decision to impose a specific intent requirement in a case involving violent threats is inconsistent with decisions from other courts, the law in over a dozen states, the Model Penal Code, and the history and tradition of the First Amendment. This amicus brief concludes that the Supreme Court should grant certiorari to review the decision below and reverse it.

On Tuesday November 20th, 2007 the United States Supreme Court granted certiorari in a case involving the District of Columbia's ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." With its decision to grant certiorari, the Supreme Court entered a constitutional controversy from which it had been largely absent for nearly seventy years, the meaning and scope of the Second Amendment. That controversy, the debate over the Second Amendment has occupied a somewhat curious place in American constitutional discourse. It is the subject of a vast polemical literature in the popular press, part of the often strident debate over gun control. Where once the amendment suffered from an unfortunate scholarly neglect, it has over the last two decades, become an arena of lively and sometimes acrimonious debate among historians, legal scholars and political scientists. The Court's decision is likely to provide a definitive legal ruling on the amendment although it is unlikely to end the controversy over the amendment's original meaning and how it should be applied in modern America.

This amicus brief was filed before the United States Supreme Court, supporting the petition for certiorari in CIC Services, LLC v. Internal Revenue Service, No. 19-930. The issue in the case is whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of Administrative Procedure Act challenges against Treasury and IRS rules and regulations -- specifically in this case, IRS Notice 2016-66. The brief summarizes and expands upon issues raised and arguments made in some of my previous scholarship.

The United States Supreme Court has made clear that no litigant should have to choose between asserting his legal rights and risking prosecution. That is not so for certain challenges to Treasury regulations. Information reporting regulations are enforced through civil penalties and criminal liability. Because those civil penalties count as taxes under the Internal Revenue Code, courts have interpreted the Anti-Injunction Act to bar review of information reporting regulations until a prospective litigant violates the regulation, incurs a penalty, and sues for a refund. But intentionally violating such regulations puts the litigant in jeopardy of criminal prosecution. A would-be challenger thus finds himself in the very dilemma the Supreme Court has deemed intolerable. In this Essay, I argue that the Anti-Injunction Act’s no alternative avenue exception, properly understood, applies when a litigant must risk prosecution to seek judicial review. I also explain why the Anti-Injunction Act’s core purpose—facilitating the efficient collection of tax revenue—is not implicated by information reporting regulation challenges. This issue may soon make its way to the Supreme Court in CIC Services, LLC v. IRS, a case with a pending petition for a writ of certiorari. Time will tell whether the Supreme Court is ready to do away with one more “approach to administrative review good for tax law only.” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011).

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins. If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice. In some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

Optimal remedies should be grounded in consumer harm. The caselaw interpreting the FTC's ability to obtain equitable monetary relief, however, has strayed far from this benchmark. Rather than requiring the FTC to show the marginal impact of deception, courts presume that everyone exposed to deception is harmed based on the fiction that the FTC has proven materiality. This approach is likely to overstate consumer harm in most circumstances involving a legitimate product, which will reduce the amount of beneficial marketplace information available to consumers. Several cases that challenge the FTC's legal authority to use 13(b) to obtain equitable monetary relief are awaiting certiorari determinations, which have led some to call for Congressional intervention to fix the statutory problem. Regardless of the outcome of this process, we see this turn of events as an opportunity for the FTC to recalibrate its consumer protection remedies to more closely mirror consumer harm. It should do so by focusing on the marginal impact of deception, a task that could be accomplished through Congressional action or on the FTC's own initiative. Regardless of the path, this marginal improvement would be an important one for consumers.

This paper addresses how the law defines public relations under the First Amendment. The United States Supreme Court’s denial of certiorari and California Supreme Court’s decision in Nike v. Kasky (2002, 2003) categorized PR as commercial speech, which is subject to the same regulations as advertising. In the twelve years since those decisions were issued, federal and state appellate courts have re-interpreted Nike v. Kasky (2002, 2003) in a variety of ways. This study found that since 2003 courts have consistently held that PR is not always commercial speech. From this analysis a legal definition of public relations is presented, and implications for PR practitioners are discussed.

Since at least the 1960s, public debate over abortion rights has frequently turned to issues of disability. Those who argue for liberalization of abortion laws have often been successful by raising the specter of fetal disability — whether caused by Thalidomide, or rubella, or otherwise. Those who agitate for restricting or banning abortion, by contrast, have often argued that pro-choice advocates devalue the lives of people with disabilities. In the spring of 2019, disability and abortion rights collided at the Supreme Court. Indiana had adopted a law “barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers.” The Seventh Circuit invalidated that law. In Box v. Planned Parenthood of Indiana & Kentucky, the Supreme Court denied certiorari (though it summarily reversed the Seventh Circuit’s invalidation of a separate Indiana law regulating the disposal of fetal remains). Justice Thomas concurred in the denial of certiorari, but he filed a lengthy separate opinion arguing that the ban on selective abortions was constitutional. He argued that “this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written in a case in which individuals with developmental disabilities challenged a District of Columbia policy that denied them the right to make decisions about their medical care. The case was Doe ex rel. Tarlow v. District of Columbia. The D.C. Circuit reversed a district court decision enjoining that policy. Judge Kavanaugh’s opinion did not say anything specifically about reproductive rights. He treated the case entirely as one about the (lack of a) right of incompetent persons to consent to medical treatment. But the case itself was very much a reproductive rights case. Two of the three plaintiffs had been forced to have abortions without their consent; they sued precisely to challenge the policy that had taken away their power to choose. Although Kavanaugh had a reputation as a strong “pro-life” judge, here he voted to uphold government decisions to require individuals with intellectual disabilities to have abortions. Debate over disability and reproductive rights has typically focused on the issues raised by Justice Thomas’s opinion in Box — whether fetal disability is an acceptable reason for terminating a pregnancy, and what the law should do about it. Those are important questions. But any full assessment of the intersection between disability and reproductive rights must also address the issues raised by then-Judge Kavanaugh’s opinion in Doe. Disabled people are frequently denied their own rights to conceive, bear, and parent children, whether through forced sterilization or abortion, the denial of assisted reproduction, or the denial of parental rights once their children are born. Some of these practices — notably forced sterilization — are emblematic of the Eugenics Era. But they are not at all confined to the past. Indeed, the practices that prevent people with disabilities from having and raising children — practices like the law Kavanaugh upheld in Doe — are in many ways the disability analogues of the race-based eugenic practices that Justice Thomas himself decried in his Box opinion. This essay offers a fuller consideration of the intersection of disability and reproductive rights. It does so by considering the legal and societal treatment of fetuses and children with disabilities alongside the legal and societal treatment of parents with disabilities. And it does so by bringing to bear insights drawn from two distinct social movements: the disability rights movement, and the reproductive justice movement. The piece argues that, taken together, the disability rights and reproductive justice perspectives offer substantial purchase on the questions raised by Justice Thomas in his Box concurrence. Those perspectives suggest that the questions are serious indeed but that Thomas gave the wrong answer to them. They also suggest that any effort to address the intersection of disability and reproductive rights needs to address the questions raised by then-Judge Kavanaugh’s Doe opinion — and that Kavanaugh, too, gave the wrong answer.

Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in courts across the country.” Justice Gorsuch urged his colleagues to clarify the law in this area and went on to reveal his own views about the application of the Confrontation Clause to forensic reports. His views, which are analyzed in this article, are of critical importance because he is the potential fifth vote who could either overturn or reaffirm the controlling case law in this area. It also appears that he intends to play a leading role in clarifying and shaping the future direction of confrontation jurisprudence. Justice Gorsuch is the successor to Justice Scalia, who developed the now prevailing interpretation of the Confrontation Clause as requiring “testimonial” hearsay to be cross-examined. Justice Scalia’s interpretation of the Sixth Amendment is a major part of his legacy, but is currently under attack in these cases. How much of the legacy of Justice Scalia that survives may depend to a considerable extent on Justice Gorsuch, which is why his views on this issue, which are analyzed in this article, are of particular importance.

In Bilski v. Kappos (2010), this Court explained that its interpretation of 35 U.S.C. § 101 has been guided by over 150 years of historical practice. Yet two years later in Mayo Collaborative Services v. Prometheus Laboratories (2012), the Court triggered the most radical redefinition of patent-eligible subject matter in U.S. history by engrafting an inventive application requirement for patenting practical applications of scientific discoveries. Mayo based this requirement on three critical assumptions: (1) Congress has never addressed the question of the patentability of scientific discoveries; (2) foundational precedent of the English courts and of this Court excluded scientific discoveries and demanded inventive application as a condition of patent eligibility; and (3) a new extra-textual limitation on patentability was necessary to address the undue preemption of laws of nature and other scientific discoveries. Unfortunately, inadequate briefing in Mayo led the Court astray. The Nation’s patent statutes, stretching back to the founding era, unmistakably afford patent protection to technological innovations and scientific discoveries. Congress has expressly sought to encourage both technological inventions and scientific discoveries. The legislative concern has not been with preemption of inventive fields, which the durational limits and disclosure constraints of the Patent Act address, but rather with “min[ing]” the “exhaustless” “treasures” and “unlimited reach of science.” Specific legislative enactments in 1930, 1952, and 1954 refute any requirement of inventive application for patent eligibility. Furthermore, the Mayo briefs failed to address critical context and meaning of key cases bearing on patent eligibility of applications of scientific discoveries. Both Parker v. Flook (1978) and Mayo relied on a mistaken reading of Neilson v. Harford (1841) to conclude that English and American courts restricted patents to inventive applications of new discoveries. To the contrary, Neilson became the primary authority in England and the United States for the position that practical applications of discoveries were patentable without any invention in the means of application. Finally, contrary to Mayo’s supposition that a new extra-statutory doctrine was necessary to limit undue preemption of scientific discoveries, this Court has long held that this role was served by patent law’s express disclosure requirements. See O’Reilly v. Morse (1854) and subsequent cases. As reflected in the eight opinions in Athena Diagnostics, Inc. v. Mayo Collaborative Services, as well as clear signals in numerous other cases, the Patent Office’s frequent revision of examiner guidance documents, and legislative hearings, the Federal Circuit, district courts, Patent Office, and inventors have struggled unsuccessfully to apply the Mayo/Alice decisions coherently and predictably. These decisions have imposed massive costs upon all of these institutions and the public, thereby undermining the patent system. This case provides an ideal vehicle for the Supreme Court to revisit the standards for patent eligibility on the basis of thorough briefing of the proper statutory and jurisprudential considerations.

This Amicus Brief was filed in the United States Supreme Court in the case of Google v. Oracle in support of Google's 2019 petition for certiorari. Competition and innovation are two principles at the heart of a healthy internet and the field of software development that fuels it. For decades, software engineers have relied heavily on reuse and reimplementation of functional protocols, such as the Application Programming Interfaces (APIs) in this case, to create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement. In accord with the Supreme Court’s ruling in Baker v. Selden, 101 U.S. 99 (1879), and the plain language of 17 U.S.C. § 102(b) (2012), the software industry has flourished utilizing this approach to make internet and software ecosystems more accessible, affordable, diverse, and robust. By reversing this rule in the context of APIs, the Federal Circuit upended decades of industry practice and the well-established expectations of developers, investors, and consumers. API reimplementation is a common theme among developers of all sizes — from those wishing to create entirely new platforms to those wishing to develop on them. The court below heedlessly unraveled this reasonably predictive rule and set of reliable norms that are critical to software coders for understanding what is appropriate to carry over from one project to another and what is not. This is especially true for individual coders, small startups, or nonprofit software projects, who often lack legal counsel or large financial reserves to defend themselves against unwarranted litigation. In this brief, Amici urge the Court to grant Google’s petition for certiorari in order to correct this misreading of copyright law. Specifically, Amici wish to highlight two fundamental concerns with the lower court’s opinion. First, the court’s dramatic expansion of copyright protection to include APIs, which Amici believe are not copyrightable under U.S. law, stifles innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before. Second, the Federal Circuit’s rejection of the fair use doctrine stands to undermine not only reimplementation and reuse of APIs, but also other valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements. Specifically, by creating irreconcilable conflicts with bedrock software fair use principles that have set the norms of engineering practice for over two decades, the Federal Circuit has opened the door to re-litigating many status quo software engineering practices — practices that open source projects and small startups depend on every day to produce new platforms, programs, features, and interfaces. This brief was prepared with the help of NYU Law clinical students Iman Charania and Michael Pizzi under the supervision of Professor Jason Schultz.

This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.

Whether the NLRB has jurisdiction over businesses owned and operated by Indian tribes is a contested issue on which federal courts of appeals disagree. Indeed, there seems to be a lack of clarity across the board on whether federal regulatory statutes of general application presumptively govern Indian tribes in their sovereign capacity. Yet the U.S. Supreme Court has thus far allowed this uncertainty to persist unabated; in fact, just last summer, the Court denied certiorari in a case that squarely presented an opportunity for the justices to settle the issue of NLRB jurisdiction over tribal enterprises. Needless to say, the question is an extremely close one; all told, however, I side with those who find that the NLRB lacks authority over labor relations at these businesses. Here, I explain my basis for so concluding. This Paper draws in part on prior analysis by jurists and commentators, contributing thereto some additional support and observations; and, in addition, presents some novel lines of argument and thus-far overlooked historical evidence.

This amicus brief filed in U.S. Supreme Court case of Kahler v. Kansas discusses how states (such as Kansas) are free under the Constitution to structure so-called “insanity” issues in various ways. In particular, states are free, if they choose, to require criminal defendants to prove that a mental disease or defect rose to the level of preventing the defendant from forming the required mens rea to commit the crime. In making such choices, it is important that states do not overlook the interests of crime victims, who want to see criminals held properly accountable for crimes they have committed.

Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of Article 32.

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficultly of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change. This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which a prisoner challenges his or her conviction or sentence, often on federal constitutional grounds, after the conviction has become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of its stated presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

At issue in National Association for Gun Rights, Inc. v. Mangan, No. 19-767 (U.S..), was whether government may trigger Track 1, political-committee(-like) burdens for a particular organization. Attached is a copyrighted draft — dated June 2, 2020 — of the amicus brief that the author would have filed with the parties' consent — as indicated on page 1, footnote 4 — if the Supreme Court had not denied certiorari on June 1, 2020. The Supreme Court has applied constitutional scrutiny and established the two-track system under which government may regulate—i.e., require disclosure of—political speech. E.g., Buckley v. Valeo, 424 U.S. 1, 63-64, 79-82 (1976) (per curiam); Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U.L. Rev. 35, 35-37 & nn.1-12 (2016) (“Triggering”). This action does not address Track 2, non-political-committee disclosure requirements. Instead, this action addresses law triggering Track 1, political-committee(-like) burdens. The Ninth Circuit has a different two-track system for state law. Triggering at 54 & n.109. However, the Ninth Circuit should have conformed its law to Supreme Court case law, under which government may trigger Track 1 burdens only for “organizations” that are “under the control of” candidates in their capacities as candidates, or for “organizations” having “the major purpose” under Buckley, 424 U.S. at 79; Triggering at 48 & n.84, and engaging in more than small-scale speech, Sampson v. Buescher, 625 F.3d 1247, 1249, 1251, 1261 (10th Cir. 2010); Triggering at 62-64 & nn.153-54. Moreover, “the appeal-to-vote test—once known as the ‘functional equivalent of express advocacy’—no longer affects whether government may ban, otherwise limit, or regulate speech, and the appeal-to-vote test is vague. It has no place in law.” Triggering at 77.

The U.S. Supreme Court should grant the petition for certiorari, vacate the judgment of the U.S. Court of Appeals for the Tenth Circuit, and remand for immediate dismissal of the case. The Tenth Circuit held that Article II and the Twelfth Amendment of the U.S. Constitution prohibit a state from binding its presidential electors. It concluded that a state cannot require its electors to cast their electoral votes for the presidential candidate who received the plurality of votes within that state. Based on this reasoning, the court held Colorado’s Elector Binding Law, Colo. Rev. Stat. § 1-4-304, unconstitutional. The Tenth Circuit’s ruling purports to resolve a critical issue of constitutional law that presents a matter of first impression for this Court. It calls into question the validity of laws binding presidential electors in 29 other jurisdictions. It impacts the constitutional right to vote of tens of millions of voters throughout the nation, potentially undermining public confidence in the presidential election process. And it was wholly unnecessary. Respondents’ sole cause of action in the Second Amended Complaint was a claim under 42 U.S.C. § 1983 against Petitioner Colorado Department of State. The Tenth Circuit properly held that Respondents lacked standing to seek prospective relief concerning future elections, and a standalone claim for declaratory relief concerning the long-completed 2016 election would be useless, The only justiciable avenue for relief that had not become moot was Respondent Micheal Baca’s claim for $1 in nominal damages against the Colorado Department of State. As the Tenth Circuit itself candidly admitted, however, § 1983 does not create a cause of action for damages against state agencies. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The court nevertheless chose to adjudicate Respondent Baca’s claim because Petitioner had agreed to refrain from invoking sovereign immunity or arguing that § 1983 does not apply to it. Based solely on the parties’ agreement, the Tenth Circuit adjudicated an unsettled, far-reaching, and controversial question of constitutional law with nationwide impact, notwithstanding the complete lack of a valid underlying cause of action. “[T]he State and arms of the State . . . are not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 (1990). The Tenth Circuit erred by adjudicating a type of claim this Court has characterized as “nonexistent,” Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and “not . . . valid,” Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002). The error was especially problematic in this case because it led the court to unnecessarily resolve an unresolved constitutional issue. Federal courts are required to avoid gratuitously adjudicating constitutional questions when non-constitutional grounds exist for resolving a case. See Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 (1946). The Tenth Circuit’s decision to award a remedy—damages against a state agency—that Congress did not authorize also undermined separation-of-powers principles. See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74 (1992). Indeed, the Tenth Circuit allowed Respondent to bring against a state agency the very type of statutorily unauthorized claim for damages arising from constitutional violations that this Court expressly refused to recognize against federal agencies in FDIC v. Meyer, 510 U.S. 471, 486 (1994). By willfully basing its ruling upon an incorrect construction of § 1983, the Tenth Circuit also issued an unconstitutional advisory opinion in violation of Article III. See U.S. Nat’l Bank v. Independent Insurance Agents of America, 508 U.S. 439, 447 (1993). The Tenth Circuit was not bound by Petitioner’s purported “waiver” of the § 1983 issue and, especially under the circumstances of this case, should not have accepted it. This Court should grant certiorari for the sole purpose of vacating the Tenth Circuit’s gratuitous constitutional adjudication. Moreover, Article III’s adverseness requirements limit litigants’ ability to manufacture constitutional litigation through strategic stipulations and waivers. Arizonans for Official English, 520 U.S. at 71; Muskrat v. United States, 219 U.S. 346, 361-63 (1911); California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893). The parties’ cooperation in crafting a lawsuit to secure a judicial ruling on the constitutionality of Colorado’s Elector Binding Law further undermines this case’s justiciability. Again, vacating the Tenth Circuit’s judgment is the proper remedy.

Class action filings in the federal courts surged after the Class Action Fairness Act of 2005 (CAFA) took effect, and resolution of major controversies in a single multidistrict litigation became the norm. Correspondingly, since 2010, the Supreme Court has shown an increased interest in class action procedure. As with other cases, when the Court grants review in a class case it reverses more often than not—a pattern that makes the certiorari stage critical to litigants. Although the Justices in recent cases reached consensus on minor points of class action procedure, their opinions diverged on more significant issues. With Justices Gorsuch, Kavanaugh, and Barrett now on the Court, strict constructionism will no doubt influence how class action law develops. Even before these Justices were seated, the Court’s decisions reflected a divide in how the Justices view the class action device. The 5‒3 decision in American Express Co. v. Italian Colors Restaurant demonstrates these contrasting views. 570 U.S. 228 (2013). A restaurant alleging an antitrust tying violation filed a class action against American Express on behalf of similarly situated merchants. Justice Scalia’s opinion for the Court held that the restaurant could not nullify a provision in its contract with American Express mandating that all disputes between them be decided in individual arbitration. Rejecting the argument that enforcing this clause would serve to immunize American Express, the Court held that “courts must ‘rigorously enforce’ arbitration agreements according to their terms.” Id. at 233 (citation omitted). Only if an arbitration agreement waives a party’s right to pursue statutory remedies may the agreement be invalidated, the Court reasoned, and the class waiver “no more eliminates [the contracting] parties’ right to pursue their statutory remedy than did federal law before its adoption of the class action . . . in 1938.” Id. at 236. In addition, the Federal Arbitration Act’s (FAA) “command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims.” Id. at 238 n.5. Justice Kagan, joined by Justices Ginsburg and Breyer, dissented, opining that for the restaurant to pursue its claim individually in arbitration would be a “fool’s errand” as “[n]o rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands.” Id. at 240, 245 (Kagan, J., dissenting). The dissent further asserted that the majority, “bent on diminishing the usefulness of Rule 23,” had reasoned as if it were still “ye olde glory days.” Id. at 251‒52 (Kagan, J., dissenting). Despite disagreements over how competing class action policies should be balanced, the Court’s precedents make clear that Rule 23 must be interpreted as written. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“[O]f overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce.”). The Court’s most recent class action decisions have been unanimous. The per curiam ruling in Frank v. Gaos, 139 S. Ct. 1041 (2019), avoided reaching the cy pres issue presented, remanding for an assessment of whether plaintiffs whose search terms Google allegedly shared with third parties had standing to maintain Stored Communications Act claims under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In China Agritech, Inc. v. Resh, the Justices agreed that the tolling of statutes of limitations by a class action filing does not apply to class—as opposed to individual—claims filed after a denial of class certification. 138 S. Ct. 1800 (2018) (distinguishing American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)). And in Microsoft Corporation v. Baker, the Court unanimously held (with three Justices concurring in the judgment) that class plaintiffs cannot manufacture a final judgment subject to immediate appellate review by voluntarily dismissing their claims upon a denial of certification. 137 S. Ct. 1702 (2017). The Court will continue to engage with this consequential area of civil procedure in 2021, having granted review in two cases raising class certification issues. Goldman Sachs Grp. v. Arkansas Teacher Ret. Sys., No. 20–222; TransUnion LLC v. Ramirez, No. 20–297. In keeping with how class action issues that reach the Supreme Court are often analyzed, this essay largely focuses on public policy. After a brief excursion into the origins and development of class actions in our legal system, I describe how the Court has approached dueling policies embedded in Rule 23. The discussion then shifts gears, delving more deeply into three of the Court’s most influential class action decisions. I proceed to consider the more immediate matter of how class action jurisprudence has evolved in the twenty-first century. The conclusion frames some open questions of class action law that the Court may address in years to come.

Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions. This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

Recent Supreme Court decisions have put the constitutional law of personal jurisdiction in flux. The restructuring that the Court has worked on “general jurisdiction”—that, is personal jurisdiction as to a defendant where the defendant has extensive ties to the forum state but those ties do not give rise to the plaintiff’s cause of action—seems to have been motivated at least in part by a desire by the Court to put in place “[s]imple . . . rules” governing jurisdictional questions. But the Court’s assertion that its approach broke new ground by ensconcing a rule-like test along the boundary of personal jurisdiction is erroneous in a few ways. First, while examination of the preexisting landscape reveals some disagreement among lower courts, the fact is that the presence (or absence) of general jurisdiction was predictable across a broad swath of cases. And, while the Court suggested that an absence of general jurisdiction cases from its docket demonstrated a more general lack of reliance on general jurisdiction, a novel empirical examination of the Supreme Court’s general jurisdiction certiorari docket indicates that the better interpretation of the absence of general jurisdiction from the Court’s docket is that overall lower courts were applying the test for general jurisdiction with relative ease and without much conflict. Second, the Court’s new test for general jurisdiction introduces some less, predictable, standard-like elements that were not part of the old test: The new test makes general jurisdiction over a corporate defendant proper only in essence in the corporation’s place of incorporation and principal place of business, and the determination of a corporation’s principal place of business may require comparisons across states and countries that are not always easy to apply or predict. Third, the Court’s new test for general jurisdiction is narrower than the old one, and the narrowing of general jurisdiction will push plaintiffs (who may wish to sue in their home jurisdiction or whether they were injured, or who may wish to avoid piecemeal litigation) toward the vagaries of specific jurisdiction. Moreover, the Court’s new general jurisdiction jurisprudence has already had the ripple effect of discrediting more predictable forms of specific jurisdiction. In short, under the new regime—contrary to the Court’s stated goal—more litigants are likely to face standards as they debate the propriety of personal jurisdiction. The decision in Ford Motor Co. v. Montana Eighth Judicial District Court—a case the Court has added to its docket this Term—may wind up rejecting yet another existing predictable form of specific jurisdiction. Alternative arguments—that the Court did not clearly express—are in any event insufficient to justify a narrower rule for general jurisdiction. The movement toward the narrow regime seems likely motivated by concerns of comity in the context of foreign corporations, but comity should be self-executing, leaving one to question why it should be part of the constitutional analysis. In the context of domestic corporations, the Court’s shift from a broad test to a narrow rule may be motivated, ironically, by the presence of a broad standard governing another area of Court: the constitutional limit on state choice-of-law rules. But this seems like the choice-of-law tail wagging the personal jurisdiction dog. If the Court truly wants to increase the extent to which rules govern personal jurisdiction, it should embrace a broader rule for general jurisdiction. It should also work to reduce the fractures that have characterized specific jurisdiction decisions, and consider generating a sizeable core where the presence (or absence) of personal jurisdiction is relatively predictable.

In its Burmych and Others v. Ukraine judgment of October 2017 the European Court of Human Rights has dismissed more than 12.000 applications due to the fact that given that they were not only repetitive in nature, but also mutatis mutandis identical to applications covered by a previous pilot judgment rendered against Ukraine. This raises fundamental issues as to the role of the Court within the human rights protection system established by the ECHR, as well as those concerning the interrelationship between the Court and the Committee of Ministers.

U.S. technology companies face growing uncertainty over whether and how they can be compelled to turn foreign-stored user content over to law enforcement officials. In July 2016, the Second Circuit ruled that the government could not require Microsoft to produce user content stored on its server in Ireland because the execution of the government’s warrant constituted an impermissible extraterritorial application of the Stored Communications Act (SCA). But after the Second Circuit declined to rehear Microsoft Corp. v. United States, (formally titled In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, also known as the “Microsoft Ireland” case) en banc in January 2017, the Supreme Court granted the DOJ’s petition for certiorari and heard oral argument on the case in February 2018. Throughout this litigation, other courts have issued orders compelling Google to produce foreign-stored data requested by SCA warrants. Two fundamental questions have divided these courts: (1) whether the physical location of the data at the time it is accessed should determine whether it is within the reach of the SCA, and (2) whether other countries’ data privacy laws and search-and-seizure protections apply. This Article argues that basing government jurisdiction over data on the data’s physical location threatens user privacy. It also creates unworkable and unpredictable results for technology companies by failing to account for the significant differences in how they divide, store and transmit their users’ data around the world. In the context of digital searches, the data location test has two potential effects. First, it will create bottlenecks in the already-burdensome mutual legal assistance system, hindering intergovernmental cooperation on law enforcement investigations. Second, it may embolden foreign governments to circumvent the system by adopting similar, or even more extreme, positions on jurisdiction over data, such as data localization and mandatory encryption backdoor laws. These policies have dangerous consequences for privacy, free expression, and innovation around the world. While some have written about the data location test in Microsoft Ireland in the abstract, this Article takes a step further and considers its role in the rulings conflicting with Microsoft Ireland that have been issued by federal judges over the past two years. It also evaluates several recent legislative and non-legislative proposals to solve the problems arising from the data location test. In particular, this Article highlights the pressing need for Congress to reform the Stored Communications Act, incorporating an alternative test for jurisdiction over user data and provisions that would clarify companies’ data disclosure obligations under conflicting legal regimes. Finally, while much of the literature on this topic focuses solely on legislative proposals rather than the real-world impact of the uncertainty creating a need for statutory reform, this Article focuses on what companies should do while they await a resolution from Congress or the Supreme Court. To that end, this Article offers some practical recommendations for how companies can navigate the issues arising from the data location test, particularly as they make decisions about their global operations and data storage architecture.