Author Archives: Joel Nolette

“Originalism” and the Necessity of Originalism

“[A] court . . . which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty . . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require.”

Justice Blacklock on the Ninth Amendment Right to Family

[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. –Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.) *********************************** In In the Interest of H.S., a Minor Child, the Texas Supreme Court concluded that anyone in a “parent-like role” […]

Knick v. Township of Scott, Pennsylvania: Renouncing “Treason to the Constitution”

It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. […]

Starr International: Prudential Standing’s Last Stand?

[Editors’ Note: This post is not technically a “Term Preview” since only a cert petition has been filed so far in the case, but it’s very much a petition to keep an eye on. Additionally, the author alone takes sole responsibility for every bad pun in this post.] Introduction In Lexmark International back in 2014, the Supreme […]

Digital Realty Trust v. Somers: Should the Court Take Congress Seriously *and* Literally?

Every now and again, a case comes before the Court that raises a multitude of important public policy questions, involves a set of politically salient issues, and garners widespread attention in the media. Digital Realty Trust is not really that case. However, the issue raised in the question presented is no less important given it requires the […]

Epic Systems Corp. v. Lewis: FAA v. NLRA

Introduction It should come as no surprise given the size of the United States Code, but every now and again two federal statutes point crossways. Epic Systems Corp. v. Lewis presents the Court with one such conflict between the Federal Arbitration Act on the one hand and the National Labor Relations Act on the other. […]

Auer’s Flaws Apparent in Ninth Circuit Decision

In a combined appeal involving the Department of Labor’s (DOL) contested construction of the Fair Labor Standards Act (FLSA), a panel of the Ninth Circuit recently held that DOL’s interpretation of regulations implementing FLSA was not entitled to Auer deference, ruling in favor of the defendants, a number of restaurants who had been sued by employees […]

Why Don’t We Flip the Presumption of Auer? Towards an Administrative “Rule of Lenity”

I have a very immodest proposal: let’s flip the presumption of Auer deference so that the regulated party, rather than the regulatory agency, gets the benefit of any ambiguity in a regulation? We’ll start here, but it should be noted for the record that the same logic extends to Chevron deference also. Think about it. In contracts, this […]

Forgotten Chief: William Cushing & the End of Slavery in Massachusetts

On September 13, 1810, William Cushing passed away in Scituate, MA. Cushing had served his nation in a number of important and prestigious roles: Chief Justice on the Supreme Judicial Court of Massachusetts during the Revolution, one of the six original Associate Justices of the Supreme Court of the United States (where he served for […]

Children in Need

So, selling ironic coffee mugs generated a hair over $130 as of August 14, 2017. It just so happened that a project on DonorSee was $130 shy of its funding goal. How fitting, then, to start this new endeavor: Amos has Cerebral Palsy. He is 3 years old but weighs only 5kg. His Dad died […]