The Political Economy of Judicial Federalism by Michael E. Solimine

Professor Diego Zambrano’s recent article in the University of Chicago Law Review, Federal Expansion and the Decay of State Courts, is an institutional and comparative examination of federal and state courts as it pertains to judicial federalism. While judicial federalism has a long and complicated history, by most accounts, in the past several decades, both … Continue reading The Political Economy of Judicial Federalism by Michael E. Solimine

Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

The Fifth Circuit Court of Appeals announced on November 7 that it will rehear a case called Brackeen v. Bernhardt that weighs the constitutionality of the Indian Child Welfare Act (ICWA). Adopted in 1978, ICWA was written in response to concerns that Native American children were being unjustly taken from their parents by social workers … Continue reading Fifth Circuit Will Reconsider Constitutionality of ICWA’s Race-Based Burdens by Timothy Sandefur

Originalism as Faithfulness by Christopher R. Green

Eric Segall’s Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court’s relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as “masterful” and “persuasive.” Originalism is false, Segall contends, because its adherents on the … Continue reading Originalism as Faithfulness by Christopher R. Green

Why Mississippi’s Plea to the Supreme Court That It “Owns” Its Water and That Tennessee Is “Stealing” It Is Just Wrong by Joseph Regalia

        I.          Mississippi and Tennessee’s water fight in the U.S. Supreme Court Water is pretty important. There’s a reason why people have been fighting over it for over a thousand years. We need it for the essentials—drinking, washing, and shipping things. We need it for the conveniences—our grassy front yards, our bottled water, and our … Continue reading Why Mississippi’s Plea to the Supreme Court That It “Owns” Its Water and That Tennessee Is “Stealing” It Is Just Wrong by Joseph Regalia

The Admissibility of Forensic Reports in the Post–Justice Scalia Supreme Court by Laird Kirkpatrick

Forensic reports linking a defendant to a crime—such as drug tests, blood analysis, DNA profiles, and much more—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 constitutionally required foundation for the admission of such reports. Its opinions on the … Continue reading The Admissibility of Forensic Reports in the Post–Justice Scalia Supreme Court by Laird Kirkpatrick

Why the NCAA’s No-Transfer Rule Is No Good by Michael A. Carrier & Marc Edelman

Earlier this year, after suffering from depression, University of Michigan football lineman James Hudson applied to transfer to the University of Cincinnati. Hudson aimed to start anew at Cincinnati, immediately joining the school’s football team. But unfortunately, Hudson’s hopes were dashed. The NCAA’s “year-in-residence” rule requires Division I college athletes to sit out a year … Continue reading Why the NCAA’s No-Transfer Rule Is No Good by Michael A. Carrier & Marc Edelman

Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter

Notice-and-comment rulemaking is often thought of as a fixed process: if agency X follows the process then it creates binding regulation Y. Yet, there is considerable variation in how the notice-and-comment rulemaking process actually proceeds. For instance, Trump’s Environmental Protection Agency allotted only 15 days for public comment on a recently proposed rule. This amount … Continue reading Taking Rulemaking Procedures Seriously in Bending the Rules by Rachel Augustine Potter

Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

Introduction The equal state sovereignty principle may be “our historic tradition,” but it is an ill-defined, unexplored, and ambiguous one. In Shelby County v. Holder, the Supreme Court invalidated Section 4(b) of the Voting Rights Act (“VRA”) as a violation of the “fundamental principle of equal sovereignty.” Section 4(b) contained a formula that required some … Continue reading Unequal State Sovereignty: Considering the Equal State Sovereignty Principle Through Nineteenth-Century Election Laws by Zachary Newkirk

The Origins of War Manifestos by Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz

Our recent article, War Manifestos, was the first work of legal scholarship to examine the documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth century until the mid-twentieth century. The article described these “war manifestos” and explored their history and evolution over the course of five centuries. … Continue reading The Origins of War Manifestos by Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz

How Probable is “Plausible”? by Daniel A. Epstein

See Mr. Epstein's article in the Online Journal here The federal pleading threshold is probably the most confronted, least understood, threshold in American law. We know that to survive a Rule 12(b)(6) motion to dismiss in the post-Twombly and -Iqbal world, a pleading must state a claim to relief that is “plausible” on its face. … Continue reading How Probable is “Plausible”? by Daniel A. Epstein

What is a Constitutional Right? by Professor Robert Leider

The word “right” may describe different kinds of legal relationships.  Nowhere has the nature of rights become more confused than in the debate over the Second Amendment’s scope. On Friday, November 2, the First Circuit released its opinion in Gould v O’Leary, No. 17-2202, which upheld Boston and Brookline’s denial of licenses to carry firearms … Continue reading What is a Constitutional Right? by Professor Robert Leider

Waiving Administrative Deference, by Jamie Durling & E. Garrett West

Litigants in our adversarial system must raise their best arguments or the court will find that the argument has been “waived” (or more precisely, “forfeited”). But what should courts do if an agency or a private party fails to raise Chevron deference during litigation about the lawfulness of agency action? In a forthcoming essay in … Continue reading Waiving Administrative Deference, by Jamie Durling & E. Garrett West

Briefly 3.8 – When Should Courts Overturn Precedent?

This is Briefly, a production of the University of Chicago Law Review. Today we’re discussing when courts should overturn precedent. We're joined by two legal scholars who have studied this question: Professor William Baude of the University of Chicago Law School and Professor Richard Re of UCLA School of Law. We discuss the value of … Continue reading Briefly 3.8 – When Should Courts Overturn Precedent?

Briefly 3.7 – Supreme Court Advocacy and the Separate Sovereigns Doctrine

This is Briefly, a production of the University of Chicago Law Review. Today we’re covering Supreme Court advocacy and the separate sovereigns doctrine with Michael Scodro, partner at Mayer Brown. We discuss Mr. Scodro's experiences arguing before the Supreme Court and the Court's recent Gamble decision, which analyzed whether the Double Jeopardy Clause protects a … Continue reading Briefly 3.7 – Supreme Court Advocacy and the Separate Sovereigns Doctrine

Briefly 3.6 – Who Do Corporations Serve?

This is Briefly, a production of the University of Chicago Law Review. Today we’re discussing who corporations serve. There has been a widespread belief for several decades that corporations exist to serve the interests of their shareholders. But that idea has come under increasing pressure by those who believe corporations should serve the interests of … Continue reading Briefly 3.6 – Who Do Corporations Serve?