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Unlike some similarly situated nations, the United States does not recognize the right to shelter. As a result, the country’s homelessness epidemic is exacerbated by anti-homelessness laws that punish homeless people for peddling, dumpster-diving, or sleeping in public encampments. Largely supported by the government, non-profit charities receive funding in order to deliver sheltering services into communities; however, shelters often have restrictions on who they allow to access their services. The U.S. Supreme Court has not held that there is no right to shelter, but federal and state courts have used Supreme Court precedent to carve out an understanding that no such right exists. The U.S. Constitution provides a limited number of enumerated rights, but the Supreme Court has utilized the substantive due process doctrine to find constitutional rights that are not explicit in the text of the Constitution. In 2022, the Court demonstrated a shift in their approach to substantive due process analyses by abandoning their practice of engaging in a balancing test to determine to what extent governments could restrict people’s liberty. Instead, the Court reasoned that for an unenumerated right to be constitutionally recognized, it must be deeply rooted in the nation’s history or essential to ordered liberty. With a change in approach, the right to shelter must be reconsidered. The philosophies of the American Founders acknowledge the importance of assisting the poorest sects of society not only because it fulfills the government’s duty to seek justice, but because it is critical for the legitimacy of a nation. From the Colonial era until the turn of the twentieth century, state and local governments provided sheltering services to their communities’ poorest. These services first came in the form of poorhouses and then via state-run institutions that provided care for people with the highest risk of homelessness, such as abandoned children and people with mental or physical impediments. Throughout the twenty-first century, the federal government stepped into the arena and began providing relief by funding programs that prevent homelessness and by providing grants and contracts to non-profit charities that deliver sheltering services directly to communities. Given the extensive history of government-backed sheltering services, the importance of shelter to the integrity of American justice, and the philosophies of the American Founders, this Article shows that a modern analysis supports the right to shelter despite prior judicial holdings to the contrary. [ABSTRACT FROM AUTHOR]

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria. This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications. After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that non-transsubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism. [ABSTRACT FROM AUTHOR]

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions. This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation. [ABSTRACT FROM AUTHOR]

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary's attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests a theoretical reorientation: a shift in perspective from concerns over regulation to a more traditional point of focus--the distribution of property rights. [ABSTRACT FROM AUTHOR]

The Supreme Court's decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning of the First Amendment's Religion Clauses. Beginning with Trinity Lutheran v. Comer in 2017 and followed by Espinoza v. Montana Department of Revenue in 2020, the Court has moved forward with an aggressive project of transforming the Religion Clauses into a broad anti-religiousdiscrimination clause. In this paper, I trace this doctrinal devolution and argue that the Court's novel reinterpretation is deeply misguided. By design, the Religion Clauses require discrimination--religion is to be treated differently from non-religion in a broad range of state action. The contemporary Supreme Court, however, has inverted this most basic insight. The Court's new Religion Clause jurisprudence is also on a collision course with its burgeoning government speech doctrine. This doctrine recognizes that in a democratic polity, every policy choice entails paths not chosen. Government must be able to select its own message, and in turn, discriminate against those messages it wishes not to communicate, tempered by accountability at the ballot box. Granted, to say that discrimination is sometimes required under the Religion Clauses and the Government Speech Doctrine is not to say discrimination against religion is always constitutional. Protections against objectionable discrimination remain as vital as ever. The Court's public forum doctrine, for example, protects free expression of religion from content-based discrimination when the government itself is not speaking. The heart of the Court's recent Religion Clause decisions, however, is a jurisprudentially backward constitutional mandate that government actively subsidize religious speech to avoid a Religion Clause "discrimination" claim. It is a command that government express ideas it may not wish to express. The Court's reimagining of the Religion Clauses is inconsistent with the First Amendment's original meaning, potentially harmful to both government and religion, and in direct tension with the Government Speech Doctrine. [ABSTRACT FROM AUTHOR]

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in its decision to deny the extension of the community caretaking exception to the home. Further, it argues how denying the extension of this exception to the home could prevent police from being able to intervene and help individuals in need in situations that do not rise to the criteria of an "emergency" which would fall under the exigent circumstances exception. [ABSTRACT FROM AUTHOR]

This paper delves into examining the practical problems facing the police during the implementation of the arrest procedure within the realm of criminal justice administration. Employing a comparative analytical approach, the study juxtaposes the legal framework of the United States of America and the State of Kuwait, where the study traced the legal texts, judicial rulings, and regulations regarding the behavior of police officers in both systems. It has been shown through this study that some of these problems are due to legislative texts, others are related to practical practices, others are due to social problems, and some are related to the scientific (academic) aspect. Through a comprehensive exploration of these critical aspects, the paper contributes valuable insights to the ongoing discourse on the challenges within the arrest process and underscores the need to address unresolved issues to enhance the efficacy of criminal justice administration. [ABSTRACT FROM AUTHOR]

This research paper conducts a thorough comparative analysis of custody assessment criteria employed in the legal systems of the United States and Kuwait. The freedom of the accused during the pre-trial investigation stage is one of the most important issues related to human rights and freedoms. The study adopted the analytical method of legal texts, judicial rulings, and jurisprudential opinions between two systems belonging to different legal families, namely the system in the United States of America and the system in the State of Kuwait. The study showed that the legal system in the United States of America addresses the factors that play a role in determining the decision to detain the accused during the pretrial investigation stage in a better and more in-depth manner than the treatment adopted by the Kuwaiti legislators. The study also indicated that the American legislative treatment is preferable to a procedural reason related to the American system. Finally, this study recommended the need to reorganize the issue in Kuwaiti law by adopting many humanitarian aspects related to the accused in the issue of the decision to release or detain the accused during the pre-trial investigation stage. [ABSTRACT FROM AUTHOR]

The article examines the development of the dual motivation defense, focusing on the U.S. Supreme court case, Flowers v. Mississippi. It discusses the development of discrimination doctrine in the U.S. Supreme Court and the treatment of dual motivation in other areas of the law. It provides examples of court decisions wherein whether to apply the footnote matters.

SPRC19 is a new database that seeks to capture a wide range of state policy actions in response to COVID-19 in the United States. Since March 2020 we have monitored state governments' and multi-state associations' websites for executive orders, agency rules, new legislation, and court decisions. We categorize each policy action into one of 206 distinct policies, then document the branch of government, source document, announcement date, implementation date, and expiration date (if applicable). We also record whether the action represents the introduction of a new policy or the expansion or contraction of an existing policy. The current release of SPRC19, v3.0, captures over 13,000 distinct policy actions through April 2020, which constitutes thousands more actions than similar resources over the same time period. [ABSTRACT FROM AUTHOR]

This article discusses the court case Agendia, Inc. v. Becerra in which the Court of Appeals for the Ninth Circuit addressed the need for a local coverage determination (LCD) to undergo a notice-and-comment process prior to adoption under the Medicare Act. It examines the court's ruling in favor of the Department of Health and Human Services, holding that the notice-and-comment requirement does not apply to LCD. It argues that the majority imposed a dangerous assumption of unworthiness to LCD.

The article discusses a need for a federal right of publicity statute that would maintain the policy goals of Section 23 of the Communications Decency Act while also protecting the rights of American citizens. It explains the importance of the right of publicity in the age of the internet and the historical background and significance of the Act. It also examines the decision by an appeals court not to dismiss the lawsuit of Karen Hepp against Facebook for infringing upon her publicity rights.

The article examines the role of judicial review during emergencies in the U.S. spanning the country's history up to and including decisions made by the Supreme Court in the context of the COVID-19 pandemic. It discusses the inconsistency in the Court's approach to judicial review during the pandemic. It also attempts to show why the application of normal standards of judicial scrutiny during times of emergency should be viewed as a welcome development.

Copyright of Frontiers: The Interdisciplinary Journal of Study Abroad is the property of Frontiers Journal, Inc and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article presents a survey of cases addressing whether plaintiffs asserting Fair Debt Collection Practices Act claims have standing under Article III to proceed in federal court following the Supreme Court's decision in TransUnion LLC v. Ramirez in 2021. In Maddox v. Bank of N.Y. Mellon Trust Co., the plaintiffs claimed that the defendant violated New York's mortgage satisfaction recording statutes by failing to timely cancel their mortgage within 30 days of repayment.

The article focuses on developments regarding enforcement of the Fair Credit Reporting Act (FCRA) and related court decisions in the U.S. in 2022. It discusses a rule issued by the Consumer Financial Protection Bureau prohibiting consumer reporting agencies from furnishing consumer reports containing adverse information about victims of severe human trafficking or sex trafficking. It describes several cases dealing with the duties of such agencies under the FCRA.

The article presents a survey of recent decisions concerning class action settlements in the U.S. In Humphrey v. Stored Value Cards, a district court in Ohio considered Federal Rule of Civil Procedure 23(e)(2) factors and the Sixth Circuit's own factors in approving a nationwide class action settlement in a case challenging a bank's prepaid debit card program for incarcerated persons. In Lusk v. Five Guys Enterprises, a district judge denied preliminary settlement approval for the fourth time.

The article discusses developments regarding the U.S. Federal Arbitration Act (FAA) in 2022, including related Supreme Court rulings and the law's amendment by Congress in connection with claims asserting sexual harassment or sexual assault in 2022. The Supreme Court's rulings are said to reflect a decreased reliance on pro-arbitration policies embodied in the FAA. The amendment allows sexual assault or harassment claims to be brought in court despite having a predispute arbitration agreement.

The article discusses efforts to address mass arbitration in U.S. courts. It explains the concept of mass arbitration and the consequences for a business of refusing to pay arbitration fees. It discusses the rulings on several mass arbitration cases, including the New York Appellate Division's decision on the preliminary injunction filed by Uber regarding claims filed by the American Arbitration Association in behalf of Uber Eats customers who allegedly experienced reverse race discrimination.

Opponents of the administrative state have chosen doctrine, not legislation, as their preferred tool to restructure administrative governance in the United States. As a result, courts may soon decide that the nondelegation doctrine is insufficiently robust. While the justification for giving teeth to the nondelegation doctrine typically rests on trying to democratize the administrative state or to encourage Congress to speak more precisely, creating a robust nondelegation doctrine would, however, only empower the courts at Congress's expense. This Article argues that making a robust nondelegation doctrine would be an example of judicial self-aggrandizement. To explain why the Supreme Court would only be empowering itself, this Article describes judicial aggrandizement and argues that it is best understood as a type of institutional change motivated by ideas. Drawing on original research on William Howard Taft and his decision in J.W. Hampton, Jr., & Co. v. United States, this Article demonstrates that ideas about judicial empowerment structured the initial shifts from a separation-of-powers system into a separation-of-powers doctrine that courts must enforce. Taft successfully used Supreme Court decisions to aggrandize the Supreme Court and the judiciary as a whole. The same ideas continue to structure the courts' role in the constitutional system. Creating a robust nondelegation doctrine requires endorsing the same ideas and further entrenching the Supreme Court as the final arbiter over core questions of constitutional self-governance. A robust nondelegation doctrine would be yet another example of judicial self-aggrandizement. [ABSTRACT FROM AUTHOR]

A specter is haunting The Hague—the specter of American federalism. On July 2, 2019, the Hague Conference on Private International Law finalized the Hague Judgments Convention. The Convention seeks to establish a global floor for judgment recognition and promote seamless recognition and enforcement of judgments between signatories. Although virtually all observers in the United States recognize the value and importance of ratifying the Convention, stakeholders cannot agree on how to implement it: by federal statute or by uniform state law. Proponents of a socalled “cooperative federalism” approach to implementation, principally led by the Uniform Law Commission (ULC), have previously derailed U.S. ratification of the Hague Convention on Choice of Court Agreements (COCA) by insisting that principles of federalism required implementation through uniform state law. This argument is wrong as a matter of doctrine and policy. It is time to put it to rest once and for all. This Note is the first piece of scholarship to squarely address the “cooperative federalism” argument as applied to the Hague Judgments Convention. It makes two principal arguments. First, it identifies the principles that ought to guide the implementation of a treaty on foreign judgments recognition and concludes that federal implementing legislation optimizes these interests. Implementation primarily by uniform state law is inferior and poses serious disadvantages. Second, the ULC’s primary legal objection to the implementation proposal for the COCA outlined by the State Department—that the doctrine of Erie Railroad Co. v. Tompkins prohibits federal courts sitting in diversity jurisdiction from applying federal rules of decision prescribed by federal statute—was meritless in 2012, and it is meritless now. If any objections remain to implementing the Judgments Convention by federal statute, they are about turf and ideology. To the extent that the relevant stakeholders want to accommodate those political objections, this Note concludes by briefly outlining areas for compromise. [ABSTRACT FROM AUTHOR]

In US refugee policy, and foreign affairs in general, the Executive branch has an enlarged role in determining the law. While there are concurrent US constitutional powers between the Executive and Congress in foreign affairs, often, the US Supreme Court abdicates to the Executive. In particular, Sale v. Haitian Centers Council, Inc. highlights this division Of Power in US foreign affairs. In Sale, the US Supreme Court ruled that the US president's discretion in foreign affairs, based on a generalized delegation of power from Congress, outweighed any international or domestic obligations to provide asylum applicants status determination proceedings. Additionally, the Court made this ruling despite congressional acts that required determination proceedings for asylum applicants. These policies Of interdiction seen in Sale remain largely intact in modern US foreign policy and continue to plague Haitian migrants into 2022. With this in mind, this Note analyzes potential extraterritorial application Of the US Constitution ("the Constitution"), namely rights to procedural due process. Following this analysis, this Note then highlights the ways that applying the Constitution to asylum applicants abroad can act as a safeguard to ensure that the United States upholds important international and domestic obligations despite the US Supreme Court's tendency to defer to the Executive in foreign affairs. [ABSTRACT FROM AUTHOR]

The article examines the treaty-as-contract analogy which exists in U.S. legal discourse since the decision of U.S. Chief Justice John Marshall in Foster v. Neilson in the early 1800s. Topics discussed include the differences between a treaty and a contract, the misreading of Marshall's opinion in the case, and the U.S. Supreme Court's treatment of the Foster case in its decision in Medellin v. Texas.

In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals ("DACA") policy, an issue that sparked the interest of a wide range of amicus curiae, including those in support of the policy. Using Critical Race Theory ("CRT") and UndocuCrit Theory in an integrated framework, this Article interrogates the social context amici presented in their amicus briefs to see what we could learn about DACA from the perspective of amici. This Article demonstrates that amici highlighted the importance and impact of the policy to all sectors of society, but, in doing so, largely emphasized the substantial gains and potential losses to the country and U.S. citizens, de-centering DACA recipients. The social context did not fully humanize recipients before the Court. Building upon this analysis, this Article discusses the implications for legal frameworks with social context, institutional/disciplinary norms, and comprehensive immigration reform. [ABSTRACT FROM AUTHOR]

The article examines the U.S. Ninth Circuit's decision in Blixseth v. Credit Suisse and its difference from the court's previous decisions on nondebtor releases or third-party releases. Topics discussed include the purpose of nondebtor releases, the type of nondebtor release involved in the case, the implications of the court's decision in Blixseth for future nondebtor releases, and an alternative position on nondebtor releases that complies to the Bankruptcy Code's provisions and goals.

The Supreme Court's decision in Bostock v. Clayton County was an important victory for gay and transgender workers--but the Court's textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a "simple test" of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock's holding vulnerable to attack, but also has engendered uncertainty about the many disparatetreatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient--and perhaps disorient--judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made "because of" a protected characteristic--one that accords with Bostock's motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning "determinable" properties and their corresponding "determinates," this Article develops an account that meets that need. In brief, this "dimensional" account of disparate treatment recognizes a decision as being made "because of [an] individual's X" whenever the decision is motivated by a property that characterizes the individual in the dimension of X--regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies--involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an "ordinary reader" would ascribe to Congress's enactment of Title VII--so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand. [ABSTRACT FROM AUTHOR]

The Alien Tort Statute (ATS), which allows aliens to jile civil suit in US. courts for utolations qfthe law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however, has been gradually eroded in a series of Supreme Court decisions. The statute's latest trip to the Supreme Court came in October Term 2020 in a pair of cases: Nestlt USA, Inc. v. Doe and Cargill, Inc. v. Doe, brought by for~er enslaued children tralficked from Mali to Cate d'Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The mivority never reached the issue, holding instead that the plaintiffs sought inappropriately to apply the ATS extraterritorially- a decision that could haue-far-reaching consequences. This Ls an essential moment, then, to step back and assess the ATS. Before deciding how to moveforward, it is necessary to assess where we haue been, what the ATS has achieved, where it has fallen short, and to consider the range of options for human rights victims seekingjustice. To do that, this Article undertakes the most comprehensive empirical study of the ATS to date. Using a database of every single case brought under the ATS in US. federal court that has resulted in a published opinion, this Article provides a detailed picture of ATS litigation from 1789 to the present. This quantitative data is augmented with detailed interviews with participants on both sides Qf the modem cases. The Article arrives at three main conclusions that lead to three sets of recommendations. First, the greatest barrier to ATS suits is the limitation on extratenitorial etlect of the statute. In light of this. Anding, we recommend alternative strategies to provide accountability for human rights violations committed outside the United States. Second, plaintiffs generally do not receive signficant material benefits from ATS litigation, but they still benefitfrom the opportunity to be heard and to bring attention to the hanns they haue suffered. Given this finding, we suggest greater attention to options for non-adversarial dispute resolution. Third, the ATS and other existing tools have proven inadequate for reaching corpomte contributions to human rights violations. Hence serious consideration should be given to legislation, including due diligence obligations, aimed directly at this problem. [ABSTRACT FROM AUTHOR]

In TransUnion v. Ramirez, the Court entrenched a "close relationship" test for defining concrete injuries under Article III's injury-in-fact requirement. In order to assess concreteness, courts must attempt to analogize a plaintiff's harm to a harm traditionally recognized by English or American courts. Without a close relationship to a traditional harm, plaintiffs may not maintain their action in federal court. This test necessarily raises an important question: how analogous is analogous enough? By varying the level of generality, a possibly analogous traditional harm might be sufficiently, or insufficiently, close to a plaintiff's current harm. The more generally one is willing to view a traditional harm, the more likely the close relationship test will be satisfied. The more specifically one views a traditional harm, the less likely the plaintiff's harm will suffice. In TransUnion itself, Justice Kavanaugh's majority opinion simultaneously used a rather specific level of generality for certain questions of similarity, leading to a rejection of various claims under the close relationship test, and a general, more forgiving, level for another question, allowing certain claims to continue. Justice Thomas, in dissent, uniformly used a highly general level and accordingly concluded that all of plaintiffs' claims were sufficiently analogous. The uneven application of levels of generality in TransUnion helpfully illustrates the problem of unsystematic application of levels of generality in legal analogies. The issue is present in many parts of legal reasoning, from the definition of rights to whether prior precedent is binding or merely persuasive. But varying levels of generality are particularly problematic when present in originalist analysis. Originalism purports to be a formalist, discretion-limiting, method of constitutional interpretation. But the ability to switch between levels of generality when describing and applying historical cases and practices inserts significant discretion. By recognizing and better systematizing the levels of generality used for originalist analogies, judges, practitioners, and scholars can better and more faithfully apply originalism. [ABSTRACT FROM AUTHOR]

Copyright of Revista de Direitos Fundamentais & Democracia is the property of Revista de Direitos Fundamentais & Democracia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article examines the role of the fair use defense as a market facilitator in the U.S. Topics discussed include the fair use doctrine and its legislative and judicial history, a background of Authors Guild Inc. v. Google Inc., the courts' decisions in the case, the support of legal scholars to the courts' decisions, and the role of the case's court decisions in giving legitimacy to similar projects like Google Books.

Organizational involvement in stigmatized practices, that is, practices that attract substantial societal condemnation, is often challenging, inasmuch as it requires the successful management of stakeholder disapproval. In this regard, existing work on organizational stigma has highlighted the advantages of situating stigmatized practices within large, generalist organizations, because doing so allows for stigma dilution—that is, organizations can reduce stakeholder disapproval by increasing their relative engagement in uncontested practices, thereby straddling multiple categories in the eyes of audiences. This line of argument, however, runs counter to the empirical observation that stigmatized practices often remain overwhelmingly concentrated within smaller, specialist organizations, even though these are often not optimally positioned to cope with stigma. In this paper, therefore, we undertake an in-depth historical analysis of a revelatory case—abortion provision in the United States following the landmark Roe v. Wade U.S. Supreme Court decision—to build theory of how stigmatized categories can come to be populated predominantly by specialists. Building on primary and secondary archival materials, we identify three mechanisms that shaped category evolution and resulted in the de facto segregation of abortion into specialist organizations: the founding of freestanding facilities by values-driven providers, the exit of generalist organizations from the category, and the involuntary specialization of remaining providers, as customers no longer frequented them for other services and they soon became labeled simply as "abortion clinics." We conclude by discussing the implications of our findings for the stigma literature and the generalizability of our theorizing to other settings. [ABSTRACT FROM AUTHOR]

This paper makes the point that a court decision that is open to an appeal is akin to a take-it-or-leave-it settlement proposal for both parties. For the case to not be appealed, both parties need to "take," i.e., accept, this proposal. Thus, on one hand, if both parties cannot achieve a settlement by themselves, they usually benefit from the right to appeal. On the other hand, a right to appeal activates the regressive effects that characterize settlements, which also applies to lower-court decisions. For example, legal uncertainty has a regressive effect on lower-court decisions: if the judge wishes to block appeals to protect one party's interest, his or her own self-interest, or the system's interest, the lower court judge's decision will be regressively biased relative to the higher-court decision. In fact, this could also occur without strategic judges, but this would be an evolutionary process. [ABSTRACT FROM AUTHOR]

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." There is no obvious public safety exception. Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the "ordinary military equipment" militia members are expected to provide. This may be accomplished using the rationale employed by the United States Supreme Court in its 1939 decision of United States v. Miller, which upheld the National Firearms Act of 1934. The Firearms Act regulated automatic weapons, including machine guns, short-barreled shotguns, and short-barreled rifles, by requiring possessors to register them and pay a substantial tax. In its 2008 decision of District of Columbia v. Heller, the Supreme Court reaffirmed the holding in Miller. In Heller, the Supreme Court found that the Second Amendment protected an individual's right to keep and bear arms.8 The Court in Heller stated that Miller "stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons" and that it "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."9 Thus, the rationale employed in Miller is still effective and shows how certain types of weapons may be regulated. [ABSTRACT FROM AUTHOR]

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.

Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of "dignity" in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustrations. Part V lists other sites of accommodation and briefly discusses how one might use the public/private distinction despite its socially constructed character. [ABSTRACT FROM AUTHOR]

To determine the proper procedure by which landowners may seek judicial review of adverse decisions on rezoning applications, Georgia courts must consider the nature of rezoning decisions. For decades, the courts have held--with little explanation--that rezoning decisions are legislative acts subject to de novo review. Then, in the 2017 case Diversified Holdings, LLP v. City of Suwanee, the Georgia Supreme Court classified rezoning decisions as adjudicative acts that may only be reviewed by writ of certiorari. Because the court did not explicitly overturn the decades of precedent classifying rezoning decisions as legislative acts, however, the nature of rezoning decisions--and thus the proper procedure for seeking judicial review of those decisions--is uncertain. This Note argues that the Diversified Holdings court properly classified rezoning decisions as adjudicative acts subject to discretionary appeal and explores the implications of the court's decision. [ABSTRACT FROM AUTHOR]

Under the Marks Rule, a fractured Supreme Court decision's controlling precedential value is assigned to the Justice's opinion that constitutes the "narrowest grounds" supporting the Court's judgment. Unfortunately, this seemingly simple standard has resulted in chaotic applications and geographically inconsistent results across the United States Courts of Appeals since the Court originally articulated the Marks Rule in 1977. For decades, the Court has not addressed the proper application of the Marks Rule, leaving the various circuits to develop their own approaches to applying the Marks Rule. In its 2020 decision in Ramos v. Louisiana, however, the Court acknowledged that the Justices have divergent approaches to applying the Marks Rule. The geographic inconsistency in interpreting Supreme Court decisions under such divergent approaches to applying the Marks Rule--as illustrated by the circuits' divergent interpretations of the Court's fractured decision in June Medical Services L.L.C. v. Russo--necessitates that the Court articulate a uniform application of the Marks Rule. This Comment analyzes what the Court's current composition could mean for the possible development of such a uniform application of the Marks Rule. [ABSTRACT FROM AUTHOR]

The article examines the precedential effect of the U.S. Supreme Court's stay decisions which are part of its shadow docket. It argues that the Court's stay decisions can be classified into three categories, those that have little value for lower courts, those that are useful as persuasive authority, and those that are authoritative with respect to future cases considering the same legal questions.