In one of the more substantive moments of this month’s Supreme Court Confirmation Theater, Judge Brett Kavanaugh was asked whether he would support broadcasting video of the Supreme Court’s oral arguments. Kavanaugh demurred, saying only that he would keep “an open mind” on the issue. Given that most members of the Supreme Court have come… Continue reading Decoding Judge Kavanaugh’s “Open Mind” on Supreme Court Cameras
Wayfair.com: What a Sales Tax Case Reveals about Federalism, the Dormant Commerce Clause, and the Direction of Supreme Court Jurisprudence
The authority of States to impose taxes on remote sellers is an issue that calls up various constitutional principles, including (but not limited to) fundamental questions about federalism, the Due Process Clause, and the Commerce Clause. Last term, in South Dakota v. Wayfair, Inc., the Court was asked yet again whether a seller with no… Continue reading Wayfair.com: What a Sales Tax Case Reveals about Federalism, the Dormant Commerce Clause, and the Direction of Supreme Court Jurisprudence
Left-to-Work for Less
Missouri voters gave the American labor movement a very welcome bit of good news earlier this month when by a 2-1 margin they refused to become the 28th state in the nation to adopt right-to-work legislation in the private sector. Coming on the heels of the U.S. Supreme Court decision in Janus v. AFSCME, which held… Continue reading Left-to-Work for Less
Putting Korematsu to Rest, Not a Moment Too Soon
More than a few commentators have noted the U.S. Supreme Court’s effort in Trump v. Hawaii, the travel ban case, to put to rest any lingering doubt about the validity of one of the nation’s most notorious judicial precedents, Korematsu v. United States. In that World War II-era case, the Court upheld the government-mandated internment… Continue reading Putting Korematsu to Rest, Not a Moment Too Soon
Faculty Blog: What the Improper Removal of Mueller Could Mean for Trump’s Presidency
President Trump has recently taken to Twitter to disparage Special Counsel Robert Mueller’s investigation of possible links between the Trump campaign and Russia during the 2016 election. Coupled with the Attorney General’s firing of former deputy director of the FBI Andrew McCabe days before his retirement, the President may be seeking to undermine Mueller’s credibility… Continue reading Faculty Blog: What the Improper Removal of Mueller Could Mean for Trump’s Presidency
Article Preview: Courts and Informal Constitutional Change in the States
The Constitution is at the heart of our state and individual rights and is the foundation of our very nation. When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind. However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution. As… Continue reading Article Preview: Courts and Informal Constitutional Change in the States
Faculty Blog: SCOTUS to Hear eCommerce Sales Tax Case
By: Natasha Varyani, Adjunct Professor of Law The United States Supreme Court is scheduled to hear arguments in the case of South Dakota v. Wayfair, Inc., addressing the issue of when sales tax needs to be collected by online retailers engaged in eCommerce. In its 1992 decision in Quill v. North Dakota, the Court ruled that a retailer must have a “physical presence” in a state in order to be subject to that jurisdiction’s sales and use tax laws. The Court in Quill was revisiting its 1967 holding in National Bellas Hess v. Department of Revenue, in which it reviewed the authority of a state to impose its sales and tax laws on an out of state entity doing business in state. Both Bellas Hess and Quill dealt with retailers that conducted sales through mail order, and their only presence in state was the catalogue of products offered. The Court in Quill cited “tremendous social, economic, commercial and legal innovations” that had occurred in the twenty-five years that had passed since its holding in Bellas Hess to justify overruling that former holding.
Article Preview: Re-Reading Alafair Burke’s The Ex
There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as… Continue reading Article Preview: Re-Reading Alafair Burke’s The Ex
Article Preview: Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction
In fictitious literary and cinematic works, American judges are often portrayed as unethical, corrupt, eccentric, or simply brutal; however, the overwhelming majority of American judges are doing their difficult jobs fairly well. In his Article, Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction, U.S. District Judge Michael… Continue reading Article Preview: Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction
Faculty Blog: The President, the Courts, and National Security
By: Lawrence M. Friedman Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.” That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
