Category Judiciary

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. […]

Courthouses Should Be Beautiful

[Eds. Note: We’re pleased to be able to share this piece by John Ehrett, who joins us as a guest author] Most government buildings are pathologically ugly. By “government buildings,” I don’t mean iconic structures like the Lincoln Memorial or the White House. I mean the garden-variety government buildings that sit in medium- to large-sized […]

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 […]

Justice Don Willett’s Uncontroversial Commitment to the Constitution

The 1905 Supreme Court case Lochner v. New York has long been a lightning rod for the claim that unelected judges have no place in our Constitutional system striking down laws purporting to ensure public health and safety. The periled precedent played its part this week as UT Law student Noah Horwitz dutifully deployed it against […]

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 […]

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 […]

Jurisdiction, “Indian Country,” & A Critique of Murphy v. Royal, –F.3d–, (10th Cir. Aug. 8, 2017)

On August 8, 2017, the State of Oklahoma suffered a major jurisdictional defeat.  In Murphy v. Royal, —F.3d—, 2017 WL 3389877 (10th Cir. Aug. 8, 2017), it was held that a large swath of Oklahoma, including the Tulsa metropolitan area, falls within a reservation of the Creek Nation; that the Creek Reservation has never been disestablished […]

An Erie Doctrine for Arbitration

Arbitration has become a staple of modern dispute resolution—the alternative par excellence to court adjudication for almost “every type of justiciable claim.”[1]  Its rise can largely be attributed to the use of arbitration clauses, contractual provisions that require legal claims be resolved in informal, non-judicial forums.[2]  What’s more, arbitration clauses received federal imprimatur over a […]

Minimal Contact: Reconsidering Personal Jurisdiction Over Absent Class Members

Absent class members play a protean role in the lifecycle of a lawsuit.  Parties for some purposes, but not others, [1] their status continues to vex courts in a variety of situations.[2]  That incoherence largely stems from Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).  There, state and federal courts were permitted to exercise […]

Senator Durbin, I Am a Proud Member of the Federalist Society. Here’s Why.

Here we go, again. Today, Senator Dick Durbin expressed his befuddlement, perhaps with underlying disdain, as to why an overwhelming majority of this administration’s judicial nominations have either currently or previously been members of the Federalist Society. Our Editor-in-Chief, Joel Nolette, previously covered Senator Durbin’s fear of the Federalist Society. Senator Durbin expressed his concern in […]