Search

On July 2, 2024, the Supreme Court of the United States granted certiorari in Free Speech Coalition v. Paxton--a case involving a First Amendment challenge to Texas H.B. 1181. That statute, aimed at limiting youth exposure to sexual material online, requires pornography companies to verify that their users are at least 18 years old. Since 2023, 18 other states have enacted nearly identical age-verification laws with surprisingly bipartisan majorities. As of this Note's publication, analogous legislation is pending in at least 17 additional states. But according to the pornography industry, because these laws burden substantial amounts of protected speech, courts must apply strict scrutiny--a demanding standard which the laws allegedly cannot survive, especially in the wake of Reno v. ACLU and Ashcroft v. ACLU II. This Note challenges that argument. It argues that recent ageverification laws pose no serious First Amendment concerns and should be upheld against the industry's legal challenges. Contrary to the industry's suggestions, recent age-verification laws were carefully crafted to avoid the constitutional pitfalls of the provisions of the Communications Decency Act and the Child Online Protection Act that were invalidated in Reno and Ashcroft II. The recent legislation--including Texas H.B. 1181, the focus of this Note--represents a concerted effort by state legislators of all political stripes to incorporate the judicial guidance previously provided by the Supreme Court. While this Note is sympathetic to a majority of the government's proffered defenses of the laws--involving the obscenity exception to the First Amendment and rational basis review under Ginsberg v. New York--it ultimately concludes that strict scrutiny is the appropriate standard of review under existing precedent. Texas H.B. 1181, and all analogous laws, still survive this demanding standard of review because they (1) serve the compelling governmental interest of protecting children from online pornography, (2) are narrowly tailored to achieve that interest, and (3) are the least restrictive means of advancing it, notwithstanding the availability of parental-led content filtering software. Part I of this Note describes the history of recent age-verification legislation and the modern reemergence of anti-pornography sentiments. It then analyzes the statutory requirements of age-verification laws, particularly of Texas H.B. 1181. The remainder of Part I recounts the history of obscenity jurisprudence in the United States and contemporary Congressional attempts to regulate sexual content on the internet. Part II considers a variety of defenses of the laws. It first examines whether the laws can be upheld under the obscenity exception to the First Amendment. It then contemplates the appropriate standard of review and analyzes whether H.B. 1181 survives the relevant tiers of constitutional scrutiny. Part III explores potential avenues for the Supreme Court to revisit its obscenity jurisprudence in light of original understandings of the First Amendment and consistent state practices following its ratification. [ABSTRACT FROM AUTHOR]

The article examines the decision of the U.S. Eighth Circuit Court in Kelsay v. Ernest which provides qualified immunity to Gage County sheriff deputy Matt Ernst from an excessive force claim filed by Melanie Kelsay. Topics discussed include the development of qualified immunity through the Supreme Court, Eighth Circuit and Court of Appeals precedents, violation of standard of review in the Eighth Circuit analysis, and implication of the decision to deny the petition for a writ of certiorari.

The article discusses how sovereign immunity protects the U.S. federal government from its obligations under the Fair Credit Reporting Act. Also cited are the 2019 case Robinson v. U.S. Department of Education in which the Supreme Court failed to grant a certiorari to address the contrasting ruling by the Fourth and Seventh circuits regarding the issue of waiver of sovereign immunity, and why there is a need to reform the Act.

The article analyzes the issue of who will determine majorness in the major questions doctrine involving U.S. policy. Topics discussed include the origin of the nondelegation and major questions doctrines, arguments supporting the attribution of majorness determination to the Congress or to the judiciary, and the need for textualists to exercise the grants of discretion given to courts in the certiorari and en banc processes to limit the nondelegation doctrine to major questions.

Federal courts are vitally important for a in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficulty 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 prisoners challenge their convictions or sentences after the convictions have 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 the 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. [ABSTRACT FROM AUTHOR]

In the midst of prevalent abusive language online, the U.S. Supreme Court's decision in Elonis v. United States did not resolve many issues in how to determine whether a statement is a "true threat" under federal law, and the court denied certiorari in three subsequent cases that presented the opportunity to clarify the law on this point. In the absence of such guidance, federal courts have applied various factors to rule in these cases. This paper quantifies and analyzes how these courts have applied various factors, showing the need for clear standards for what communication can be considered "true threats". [ABSTRACT FROM AUTHOR]

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court's part. In those situations, the Court's exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant's chances for obtaining relief and is what might be characterized as the "final tool" in the appellate lawyer's "toolbox." There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client's options for relief in the direct appeal and post-conviction processes. [ABSTRACT FROM AUTHOR]

Much has been written about the “agency design” of the Consumer Financial Protection Bureau (CFPB) over the past eight years. Scholarship in this area has primarily focused on why the CFPB may be unconstitutionally structured and whether that structure could survive judicial scrutiny should the issue reach the Supreme Court. Due in part to recent upheavals in the political landscape of the federal government—from the election of a conservative President who espouses a judicial-centric political strategy to the appointment of two staunchly conservative Supreme Court Justices—there is no longer a clear path forward for the CFPB, which is currently facing constitutional scrutiny at the Supreme Court. Having granted certiorari to the Ninth Circuit in a case upholding the constitutionality of the CFPB, the Court has already heard oral arguments and is expected to issue an opinion by early Summer 2020. In consideration of the pressures that the Bureau faces in the short term, this Note approaches the CFPB’s constitutional-design question from a future-oriented perspective, ultimately suggesting an answer to the Bureau’s critical existential question: How can it continue to exist as a useful administrative agency while maintaining some level of insulation from the whims of political change that will both inevitably and periodically disrupt its mission in the future? [ABSTRACT FROM AUTHOR]

In the denial of certiorari review in Hidalgo v. Arizona, 138 S. Ct. 1054 (2018), a four-Justice statement commented on the petition and the underlying litigation challenging, on the basis of empirical evidence, whether the Arizona capital sentencing statute sufficiently narrows the pool of defendants eligible to receive the death penalty. The Hidalgo Statement observes that the Arizona Supreme Court erred in its application of the Federal law and the petition raised an "important Eighth Amendment question" based on research into the operation of the sentencing statute. In declining the case, the four Justices encouraged similar future challenges and urged the development of trial court records examining any such statistical proof of alleged constitutional deficiencies. Since the landmark decision McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court has essentially sidelined empirically developed challenges to criminal statutes. Hidalgo offers noteworthy guidance to the potential restoration, after three decades, of a former avenue for constitutional redress premised upon statistical and historical analyses. This article addresses the present implications of the Burger and Rehnquist Courts' foreclosure of this means to constitutional scrutiny and suggests steps to restoring the evidentiary salience of empirical proof reflecting the actual operation of the death penalty. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court case Midland Funding, LLC v. Johnson, in which Aleida Johnson filed a relief petition under chapter 13 of the Bankruptcy Code for a debt owed to commercial debt purchaser Midland Funding LLC. Topics discussed include the Debt Collection Practices Act (FDCPA), Midland Funding's effect on the bankruptcy system's stale-debt claims, and certiorari petition filed by Midland Funding.

The article argues that the Fourth Circuit misinterpreted the U.S. Supreme Court's use of armed and thus dangerous standard in United States v. Robinson. Topics covered include the history of the inception of stop-and-frisk and explains the procedural history, facts, and reasoning behind the case, how the implications of the unitary concept will affect lawful gun carriers and those assumed to be armed and the need for the Supreme Court to grant certiorari in a stop-and-frisk case.

The article focuses on the 2017 Annual Survey of Consumer Financial Services Law of the periodical in the U.S. Topics discussed include the regulations issued by the Consumer Financial Protection Bureau (CFPB), the reporting on Fair Debt Collection Practices Act of the U.S., and the changes to lending regulations in the U.S. by the CFPB. Also mentioned is a certiorari granted by the U.S. Supreme Court for local government sue in case of damages from discriminatory mortgage lending.

The article presents information on legal developments in marketing relative to the regulation of price competition. In reference to price discrimination, the case of Willard Dairy Corp. v. National Dairy Products Corp. is cited. In this case, it was argued that the rights of Willard Dairy Corporation were denied. It was contended that the Supreme Court's denial of certiorari was not compatible with its own decision in another similar case. In that case the Court condemned the practice under which profits made in nondiscriminatory interstate transactions are used to offset losses arising from discriminatory price-cutting at the local level. In the case of Hudson Distributors Inc. v. The Upjohn Co., the Ohio Supreme Court, after several conflicting lower court decisions, has ruled that the 1959 Fair Trade Act is constitutional.

The article reports the decision of the U.S. Supreme Court in the case "Till v. SCS Credit Corporation" in which the court granted certiorari to determine the proper formula for setting an interest rate for a "cram down" loan to a bankrupt Chapter 13 debtor. It argues that uniform application of the law by federal bankruptcy courts requires the consistent application of one cram down interest rate formula.

Banks and marketplace lenders have been tracking the aftermath of the Second Circuit's May 2015 decision in Madden v. Midland Funding, LLC. A petition for writ of certiorari has been pending before the U.S. Supreme Court since November 10, 2015, and the U.S. Solicitor General recently provided an opinion on whether the Court should review the Second Circuit's holding that an assignee of consumer (credit card) loans originated by a national bank could not invoke federal preemption pursuant to the National Bank Act to defend a state law usury claim under the valid-when-made principle. Although the Solicitoi General disagreed with the Second Circuit, reaffirming both the valid-when-made principle and the power of non-bank loan assignees to charge interest at the rate originally agreed upon by the national bank assignor and the borrower, it nevertheless recommended that the Court deny certiorari, thus extending a period of uncertainty in the secondary loan market. [ABSTRACT FROM AUTHOR]

We investigate why the Supreme Court grants a smaller percentage of cases at the first conference of each term compared to other conferences. According to received wisdom, Supreme Court law clerks are overly cautious at the beginning of their tenure because they receive only a brief amount of training. Reputational concerns motivate clerks to provide fewer recommendations to grant review in cert. pool memos written over the summer months. Using a random sample of petitions from the Blackmun Archives, we code case characteristics, clerk recommendation, and the Court's decision on cert. Nearest neighbor matching suggests clerks are 36 percent less likely to recommend grants in their early cert. pool memos. Because of this temporal discrepancy, petitions arriving over the summer have a 16 percent worse chance of being granted by the Court. This seasonal variation in access to the Court's docket imposes a legally irrelevant burden on litigants who have little control over the timing of their appeal. [ABSTRACT FROM AUTHOR]

Past research indicates that amicus briefs influence the Supreme Court's decision to issue a writ of certiorari; however, we know relatively little about the reasons that lead interest groups to file such briefs. We seek to explain how organized interests make decisions about whether or not to file amicus curiae briefs during case selection, and we examine the factors that influence the total number of amicus briefs filed in each case. We find that certain factors influence amicus activity during this early stage of decision making, including the presence of the solicitor general as amicus curiae, case salience, and the issue areas involved in litigation. [ABSTRACT FROM PUBLISHER]

The article examine the conditional consent judgments and appellate review procedure in the U.S. justice administration. Topics discussed include decision of the U.S. Supreme Court in the case 'Amstar Corp. v. Southern Pacific Transport Co. of Texas & Louisiana,' conditional consent judgments and appealability of consent judgments, and the U.S. Supreme Court denial of certiorari petitions.

On the last day of the 2011 Term, the Supreme Court dismissed, as improvidently granted, the writ of certiorari in First American Financial Corp. v. Edwards. The dismissal, seven months after oral argument, was an unusual outcome for a case many expected to be the "sleeper" of the Term. At issue before the Court was whether Article III limits Congress's power to confer standing upon litigants whose only injury is a violation of a statutory right. At oral argument, members of the Court expressed discomfort with the existing formulation--that Article III injury may exist "solely by virtue of statutes creating legal rights, the invasion of which creates standing." This Note takes up where the Court left off. It suggests the existing formulation is incomplete insofar as it permits plaintiffs to bring suits against private parties without showing how their conduct injures the plaintiffs in a differentiated way. This Note argues that Article III requires a plaintiff's injury be "rationally connected" to the offending conduct at issue. It suggests the Court articulate such a "rational connection" requirement to close a doctrinal gap in the test for particularized injury. [ABSTRACT FROM AUTHOR]

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds. Appreciating the unique nature of patent dialogue has important implications for patent law in particular and for all legal areas with specialized courts more generally. Encouraging the Supreme Court and Congress to debate patent policy through the Federal Circuit situates law making at the institution most capable of crafting efficient legal rules. Additionally, the Federal Circuit's participation in the dialogue over patent law and policy can reduce many of the drawbacks of specialized adjudication, namely tunnel vision, doctrinal ossification, and power expansion. But policy dialogue with a specialized court also involves unique supervisory and catalytic roles for the Supreme Court and Congress. Thus, while "patent dialogue" holds out the promise of increased institutional input regarding patent reform, the Supreme Court and Congress must develop new methods of catalyzing the Federal Circuit to action and of overseeing the Federal Circuit's responsiveness to policy signals. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S. Supreme Court case Erie Railroad Co. v. Tompkins, which dealt with the conflict between federal and state law. Topics include federal preemption of state law, the granting of writs of certiorari, and the development of federal common law in the U.S. Information is provided on the Supremacy Clause of the U.S. Constitution.

The article discusses an investigation into the potential use of plagiarism in the drafting of various amicus curiae (AC) briefs in America as of March 2014, focusing on examinations of the language used in several U.S. Supreme Court (USSC) amicus briefs and lower court opinions and litigant briefs. According to the article, USSC AC briefs affect certiorari decisions, the ideological direction of votes by USSC Justices, and litigation success. Repetition and majority opinions are examined.

After four decades of unanimity in the circuit courts, with several denials of certiorari by the Supreme Court, the Court has recently granted certiorari in two cases to resolve the apparently settled question of whether the disparate impact theory is cognizable under the Fair Housing Act (FHA). Although these two recent cases, Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., may have raised questions about the potential reach of disparate impact theory, they are not representative FHA cases with respect to their outcomes or their facts. The circuit courts in both cases reversed summary judgment and reinstated plaintiffs' disparate impact claims, which is exceedingly rare given its occurrence only twice before in forty years. In general, plaintiffs have obtained positive outcomes in only 20% of their FHA disparate impact claims considered on appeal. Further, plaintiffs' positive FHA disparate impact outcomes have been affirmed only 33.3 % of the time, compared with defendants' affirmance rate of 83.8%. The facts of Magner and Mount Holly are not representative considering that these disparate impact challenges were made against housing improvement plans, rather than housing barriers. Housing improvement challenges typically seek to prevent the disproportionate displacement of minorities from existing housing opportunities, whereas housing barrier challenges seek to remove barriers and create housing opportunities for minorities where they do not presently exist. Only one other housing improvement case prior to Magner and Mount Holly had resulted in a positive outcome for plaintiffs in forty years. Housing barrier challenges almost always further the nondiscrimination and integration purposes of the FHA. Housing improvement challenges may or may not further the purposes of the FHA, depending on the facts of the case. This means that summary judgment will not be appropriate in some housing improvement cases. Housing barrier cases represent the predominant type of FHA disparate impact claim considered on appeal and the predominant type of claim among those on which plaintiffs have obtained positive outcomes. Given the persistence of residential racial segregation and Congress's purpose in enacting the FHA to eliminate such segregation, the disparate impact theory remains a vital tool for overcoming barriers to housing opportunity and should be upheld. [ABSTRACT FROM AUTHOR]

The article presents an empirical analysis of the U.S. Supreme Court's (USSC's) case selection process in regards to cases which were adjudicated at the U.S. Court of Appeals for the Federal Circuit as or November 2013, focusing on federal laws and judicial review in America. According to the article, the USSC has nearly complete discretion to grant certiorari to whichever cases it wishes. Decision-making in law is mentioned, along with conflicts among circuit courts in the U.S.

What determines state success when petitioning the U.S. Supreme Court for review? We suggest that states can improve the likelihood of securing Supreme Court review by coordinating litigation efforts. This coordination occurs in two ways. First, some states coordinate their appellate litigation efforts internally through the creation of state solicitors general offices. Second, external coordination occurs when states join amicus briefs at the agenda setting stage urging the Supreme Court to grant review in state-filed cases. Using new data on all state-filed certiorari petitions from the 2001-2009 terms, we find that internal and external coordination is associated with an increased likelihood of the Supreme Court granting review in state-filed cases. [ABSTRACT FROM PUBLISHER]

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court's central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad "exceptions power" to facilitate, not to undermine, the Supreme Court's constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court's role in settling disputed federal questions. Notably, this argument has considerable historical support. When the Supreme Court's mandatory appellate docket grew to the point that it was unmanageable for a single tribunal, Congress responded by exercising its authority under the Exceptions Clause. Congress made "exceptions" to the Court's mandatory appellate jurisdiction and replaced it with discretionary review via writs of certiorari--precisely so that the Court could concentrate its limited resources on resolving important federal questions. Thus, contrary to conventional wisdom, Congress has often used its broad exceptions power to safeguard the Supreme Court's role in the constitutional scheme. [ABSTRACT FROM AUTHOR]

The article focuses on the need for U.S. Supreme Court recognition of the constitutional right to appeal. Topics include the Supreme Court's failure to declare due process rights in civil and criminal cases, the decline in the allowance of petitions for certiorari, and the constitutionality of bans on appellate remedies.

The article discusses American constitutional and civil rights laws in relation to the prompt judicial review of administrative decisions in the U.S. as of April 2013, focusing on the provision of due process to protect the interests of governmental clients. The First Amendment to the U.S. Constitution is addressed, along with administrative licensing practices and procedures. The certiorari legal principle is assessed in regards to agency judgments. Prior restraints are examined.

The article focuses on the tax forgiveness provision in Chapter 12 Bankruptcy Code at issue in the circuit split and the U.S Supreme Court case Hall v. United States addressing issues of statutory interpretation. It discusses the decision of the U.S Court of Appeals for the Ninth and Tenth Circuits that allows the Internal Revenue Service a veto over the bankruptcies of farmers and the Court's ruling in Hall based on the grant of certiorari upon the petition of debtors from the Ninth Circuit.

The article discusses the First Amendment to the U.S. Constitution in relation to non-discrimination policies in higher education in America as of January 2013. U.S. Supreme Court Chief Justice John Roberts, as well as freedom of speech and religion protections are addressed, along with freedom of expressive association. American constitutional law and the U.S. Supreme Court's denial of certiorari in the case Alpha Delta Chi-Delta Chapter v. Reed case are examined.

Since 1996, the Ninth and Tenth Circuit Courts of Appeals have been split over whether critical habitat designations require National Environmental Policy Act (NEPA) compliance. Providing a fresh and objective perspective, this Comment argues that critical habitat designations should not require NEPA compliance because: 1) application of the functional equivalence exemption is appropriate, and 2) federal actions that do not alter the physical environment do not fall under the purview of NEPA. Although this Comment recommends that the U.S. Supreme Court resolve the split to enable the agencies that designate critical habitat to maximize their conservation of endangered and threatened species, it also recognizes that the Court may not accept certiorari on the issue in the near future, if ever, and thus encourages the agencies to jointly develop consistent national policies on NEPA compliance. [ABSTRACT FROM AUTHOR]