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The University of the Pacific Law Review article delves into the Nondelegation Doctrine and its implications for small businesses, particularly in the context of OSHA's safety standards. It examines the historical background of the doctrine, OSHA's legal framework, and a recent legal challenge by Allstates Refractory Contractors, LLC. The article also explores the concept of "super stare decisis" in nondelegation doctrine analyses and advocates for a stronger doctrine to mitigate OSHA's impact on small businesses. The text underscores the challenges faced by small businesses like Allstates Refractory Contractors in navigating OSHA standards due to the lack of clear guidance in the OSH Act, proposing a new intelligible principle test to enhance congressional accountability and reduce OSHA's influence on small businesses. The Supreme Court is called upon to reassess the nondelegation doctrine in light of the issues raised in the article. [Extracted from the article]

Following the Supreme Court's decision in Cedar Point Nursery v. Hassid, litigants and scholars have begun to argue that laws meant to prevent housing discrimination are takings under the Fifth Amendment. This theory of property law, if recognized by the courts, would provide expansive and unprecedented power to private property owners to discriminate against others and hamstring the government's power to protect its citizens. Plaintiffs in a recent lawsuit, Yim v. City of Seattle, advanced this very argument in protest of Seattle's renter protection laws. While their petition for certiorari was denied in 2024, Yim may be a harbinger of future legal actions that seek to allow discriminatory behavior under the veil of Fifth Amendment protections. This Note makes four arguments as to why such an interpretation of the Takings Clause is inappropriate. First, there is a powerful originalist case against regulatory takings that suggests the Court erred when expanding regulatory takings in cases like Cedar Point and Penn Central Transportation. Second, existing doctrine is clear that antidiscrimination legislation is distinguished from physical takings and does not amount to regulatory takings requiring compensation. Third, Heart of Atlanta Motel remains good law and supports the argument that takings cannot be used to reward a property owner's prejudiced or discriminatory practices when they advertise their property to the public. Finally, the extension of the takings doctrine contemplated here is contrary to the goals of government and the constraints of living in a multicultural society. The rights of property owners are not absolute, and the choice to rent property to the public necessarily comes with restrictions. The Note concludes that antidiscrimination housing regulations are not takings under the law as it exists now, nor is it desirable to change the interpretation of the takings doctrine to reward discriminatory housing practices. [ABSTRACT FROM AUTHOR]

On July 2, 2024, the Supreme Court of the United States granted certiorari in Free Speech Coalition v. Paxton--a case involving a First Amendment challenge to Texas H.B. 1181. That statute, aimed at limiting youth exposure to sexual material online, requires pornography companies to verify that their users are at least 18 years old. Since 2023, 18 other states have enacted nearly identical age-verification laws with surprisingly bipartisan majorities. As of this Note's publication, analogous legislation is pending in at least 17 additional states. But according to the pornography industry, because these laws burden substantial amounts of protected speech, courts must apply strict scrutiny--a demanding standard which the laws allegedly cannot survive, especially in the wake of Reno v. ACLU and Ashcroft v. ACLU II. This Note challenges that argument. It argues that recent ageverification laws pose no serious First Amendment concerns and should be upheld against the industry's legal challenges. Contrary to the industry's suggestions, recent age-verification laws were carefully crafted to avoid the constitutional pitfalls of the provisions of the Communications Decency Act and the Child Online Protection Act that were invalidated in Reno and Ashcroft II. The recent legislation--including Texas H.B. 1181, the focus of this Note--represents a concerted effort by state legislators of all political stripes to incorporate the judicial guidance previously provided by the Supreme Court. While this Note is sympathetic to a majority of the government's proffered defenses of the laws--involving the obscenity exception to the First Amendment and rational basis review under Ginsberg v. New York--it ultimately concludes that strict scrutiny is the appropriate standard of review under existing precedent. Texas H.B. 1181, and all analogous laws, still survive this demanding standard of review because they (1) serve the compelling governmental interest of protecting children from online pornography, (2) are narrowly tailored to achieve that interest, and (3) are the least restrictive means of advancing it, notwithstanding the availability of parental-led content filtering software. Part I of this Note describes the history of recent age-verification legislation and the modern reemergence of anti-pornography sentiments. It then analyzes the statutory requirements of age-verification laws, particularly of Texas H.B. 1181. The remainder of Part I recounts the history of obscenity jurisprudence in the United States and contemporary Congressional attempts to regulate sexual content on the internet. Part II considers a variety of defenses of the laws. It first examines whether the laws can be upheld under the obscenity exception to the First Amendment. It then contemplates the appropriate standard of review and analyzes whether H.B. 1181 survives the relevant tiers of constitutional scrutiny. Part III explores potential avenues for the Supreme Court to revisit its obscenity jurisprudence in light of original understandings of the First Amendment and consistent state practices following its ratification. [ABSTRACT FROM AUTHOR]

Ambiguity surrounding the interpretation of 35 U.S.C. § 101 and the ultimate application of the Alice/Mayo standard for determining patent subject matter eligibility has long plagued the courts, practitioners, and USPTO examiners alike. Maintaining a standard that leads to sheer confusion and, as a result, inconsistent rulings severely muddles the ultimate goal of patent law, to promote innovation. The Supreme Court has been presented with ample opportunities to address these issues, with the Solicitor General consistently recommending that it hear cases that deal with patent-eligibility debates. Nonetheless, the Supreme Court's continued hesitancy to grant certiorari on these cases only further complicates an already complicated standard. Without judicial guidance and congressional intervention, this ambiguous standard will continue to stifle innovation and discourage innovative minds from seeking protection for their inventions. Accordingly, a detailed and proactive amendment to the standard is not only desired but gravely required. [ABSTRACT FROM AUTHOR]

The article discusses the concept of overlapping markets and submarkets in antitrust law, focusing on the rejection of this concept by courts and commentators. It highlights the American Express case as an example of the "One Market per Transaction" rule, which asserts that each transaction can only be allocated to one relevant antitrust market. The article argues for the adoption of the "OMT" rule, which would clarify market definitions, require rigor in market delineation, and prevent double counting of transactions in overlapping markets. The proposed rule is consistent with legal precedent, economic commentary, and recent court decisions, and its implementation would simplify antitrust analysis and enforcement. [Extracted from the article]

The article "Situating Braidwood in Broader Conversations About Health Policy and Administrative Law" published in the American Journal of Law & Medicine discusses the case of Braidwood v. Becerra, which challenges the preventive care provisions of the Affordable Care Act (ACA). The case raises important issues related to health policy, the philosophy underlying the ACA, and debates about the regulatory state and deference to scientific expertise. The preventive services mandate of the ACA requires health plans to provide close to 200 preventive services at no cost to patients, which has had a significant impact on health equity. The article also highlights the broader significance of the case in terms of religious freedom, administrative expertise, and the Supreme Court's role in shaping health care policy. [Extracted from the article]

The article focuses on the legal distinction between injunctions pending appeal and stays pending appeal, particularly in the context of emergency relief granted by the Supreme Court. It examines the statutory basis, purpose, and requirements for granting both types of relief, with a specific emphasis on the relevance of certiorari in the consideration of stays. It addresses recent criticisms of the Supreme Court's granting of emergency relief and proposed changes to the Court's approach.

The article explores the impact of the Supreme Court decision in SFFA v. Harvard on voluntary affirmative action programs. It discusses the history of affirmative action in higher education, highlighting landmark Supreme Court cases such as Bakke and Grutter. The article then focuses on the SFFA v. Harvard case and its implications for private employers. It argues that challenges to voluntary affirmative action programs in the private sector are unlikely to succeed due to the strength of Title VII and previous Supreme Court precedents. The article concludes by emphasizing the importance of investing in diversity and inclusion regardless of the future of affirmative action. [Extracted from the article]

When the United States Supreme Court agrees to hear a case, it also determines what legal questions it will answer in that case. We investigate the variation in the Court's acceptance, alteration, and addition of questions presented (QPs) in petitions for the writ of certiorari. Examining data on granted cases from 2010–2020, we find that the Court is overwhelmingly passive, accepting the petitioners' QPs without comment in most cases. We also find variation related to ideological alignment and petitioner identity. These findings have important implications for our understanding of the Court's policymaking efforts and its exercise of agenda-setting power and underscore the important role that litigants play in legal development. [ABSTRACT FROM AUTHOR]

One of the most troubling and increasingly overlooked problems plaguing the federal judiciary has been the reduction of throughput at the Supreme Court and the resulting fragmentation of national law. The imperative to resolve circuit splits has taken a back seat as the Court grapples with high-profile battles and the relentless crush of certiorari petitions. This fuels confusion and greater fragmentation of national law. Add in the general expansion of national law, and the vicious cycle intensifies. This Article proposes a solution for expanding structural capacity to address fragmentation that does not require legislative reform or constitutional amendment. It utilizes a procedure already within the Supreme Court’s toolbox, although with a twist: where the Justices encounter a clear circuit split that does not rise to the Court’s certiorari threshold, the Court should grant, vacate, and remand (“GVR”) the matter to the circuit court for en banc review. The Supreme Court would, of course, retain authority to review the en banc decision. This reinvigoration of one of the judiciary’s core functions holds the promise of enhancing the rule of law, curtailing forum shopping, reducing litigation costs, and promoting equity and economic productivity. It would require the Supreme Court to take on a more managerial approach to percolating national law and ask the appellate courts to assume greater responsibility for confronting intercircuit and intracircuit divisions. [ABSTRACT FROM AUTHOR]

This article explores the public relations challenges faced by the United States Supreme Court, which have resulted in a decline in public trust. It discusses various controversies involving the justices, including financial ties to wealthy donors, failure to disclose gifts, and potential conflicts of interest. The author argues that a free and active press is essential in holding the justices accountable and regulating their behavior. The article also examines current ethical standards for the Court and proposes alternative reforms. It suggests that media-based approaches, such as transparency and public accountability, may be more effective in promoting an ethical Court than traditional legal solutions. [Extracted from the article]

The article discusses the correct classification of the legal case Ex parte Merryman, which was referenced by Justice Sotomayor in a lecture. The author argues that Merryman was not a Supreme Court case, as Sotomayor claimed, but rather a decision made by Chief Justice Taney acting alone. The author explores the confusion surrounding the classification of Merryman as a Supreme Court case, a circuit court decision, or a district court decision. They propose that Merryman should be cited using a modern reporter for in chambers decisions by Supreme Court Justices. [Extracted from the article]

This article provides guidance on civil RICO (Racketeer Influenced and Corrupt Organizations Act) claims, explaining who can sue, the elements of a claim, and the necessary predicate acts. It discusses the Supreme Court's decision in Sedima, which set the pleading standards for civil racketeering claims. The article also explores the use of RICO in cases involving data theft and the requirements for foreign plaintiffs to satisfy RICO's domestic-injury requirement. It covers damages, defenses, aiding and abetting liability, and different approaches taken by circuit courts in determining what constitutes a "pattern" of racketeering activity. The article concludes that civil RICO can be a useful tool for both plaintiffs and defendants in litigation. [Extracted from the article]

In recent years, since soon after Justice Amy Coney Barrett assumed her seat on the United States Supreme Court, the Court has erased more than thirteen politically and legally significant opinions written by the federal appeals courts. In deciding to vacate rather than simply deny certiorari, the Court has eliminated-with one sentence orders that offer no explanation-fully briefed, argued, and reasoned opinions on issues such as abortion, the Voting Rights Act, President Trump's travel ban, and the Emoluments Clause. Consequently, progressive victories in those areas no longer stand. The Supreme Court used its power to "vacate" lower court rulings, which allows an appeals court to sometimes erase lower court precedents. The Court relied upon United States u. Munsingwear (1950), the first case to hold that when a case becomes moot during an appeal-thereby no longer involving a live controversy appropriate for judicial resolution-the higher court may vacate the decision of the court below. Importantly, Munsingwear is equitable, discretionary, fact-bound, and designed to protect parties from unfavorable rulings that were not finally appealed. Vacatur under Munsingwear has been extremely rare: on average, the Court vacated only one lower court precedent per year between 1994 and 2016. However, the Court vacated as many cases in the past seven years as it did between 1994 and 2016. But the pattern did not begin with Justice Barrett; since 2017, the Supreme Court has demonstrated a seeming eagerness to nullify lower court precedents at a clip of four per year. Most of these nullifications hindered progressive objectives. In twelve of the thirteen cases since 2021 in our study, the losing party (usually the government) invoked Munsingwear to shield future litigants from precedential rulings that announce outcomes adverse to their political or legal interests. This pattern of Munsingwear vacatur is extremely significant to litigants, political scientists, and legal scholars alike. This Article examines the previously unanalyzed rise of Munsingwear vacatur. It presents the history of this case; then, through statistical analysis presented in graphs and tables, this Article demonstrates how only recently the Court treats ostensibly moot cases differently, depending almost entirely on the ideological directionality of the federal appeals court opinion. Finally, this Article joins others in calling for more transparency from the Court. [ABSTRACT FROM AUTHOR]

In Harness v. Watson, the United States Court of Appeals for the Fifth Circuit upheld the Mississippi Constitution's Jim Crow-era felon disenfranchisement provision, enacted by the infamous 1890 Mississippi Constitutional Convention. The express purpose of those who attended the 1890 Convention was to oppress Black Mississippians and systematically exclude them from the political process. Nevertheless, the Fifth Circuit held the disenfranchisement provision constitutional, claiming that it was reenacted by a 1968 amendment and thus purged of its discriminatory taint. However, even accepting that the reenactment of a discriminatory provision can purge it of its original discriminatory taint, this Note argues that the Fifth Circuit erred in two respects. First, it adopted a flawed conception of reenactment by failing to consider who participated in the reenactment process. U.S. Circuit Judge James Graves, dissenting in Harness, noted the sad irony that the votes that purportedly reenacted this discriminatory provision were cast according to the mandate of the discriminatory provision itself. Building on that observation, this Note argues that Black Mississippians lacked a meaningful voice in the 1968 amendment process, both with respect to choosing the representatives who proposed the amendment and with respect to the ratifying election. Armed with qualitative and quantitative evidence supporting these conclusions, it suggests that under these circumstances, the 1968 amendment could not have purged the provision of its discriminatory taint. Second, the Fifth Circuit used three problematic doctrinal tools exhibited by the Supreme Court in other areas of voting rights law previously identified by prominent scholars and practitioners. They are (faux) naiveté, the presumption of legislative good faith, and animus laundering. This Note argues that these tools were essential to the holding that the amendment purged the provision of its discriminatory taint. But in using them, the court was able to avoid meaningfully grappling with the history of racism in Mississippi. Its analysis was thus deficient. Ultimately, this Note concludes that whether it is ever possible for the reenactment of a discriminatory provision to purge the provision's discriminatory taint, such a reenactment could not have occurred with respect to the provision at issue in Harness. The plaintiffs in Harness filed a petition for a writ of certiorari in the United States Supreme Court, and it refused to hear the case or reverse the Fifth Circuit's decision. But even in the face of this grave injustice, the importance of voting and democratic organizing remains ever important. [ABSTRACT FROM AUTHOR]

The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that the Court's actual reliance on originalist analysis is highly selective. In large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings. Nor do most of them show much disposition to grant certiorari in many cases that might enable them to overrule past, nonoriginalist decisions. This Article defines and documents the phenomenon of selective originalism. Having done so, the Article explores the cultural and jurisprudential conditions in which selective originalism, which typically abets substantively conservative decisionmaking, has developed and now flourishes. The doctrine of stare decisis, the Article argues, plays an important role in enabling selective originalism. Because it seldom either requires or forbids precedent-based decisionmaking by the Supreme Court, it allows the Court to be originalist when it chooses but not to be originalist when it chooses. In light of this appraisal of the significance of stare decisis in the Supreme Court, the Article criticizes the practice of selective originalism for its inconsistency and disingenuousness. But the Article also explores the obvious question that criticisms frame: Why do the selectively originalist Justices not respond by articulating a more complex doctrine that would seek to justify their only-selective reliance on originalist premises? We would misunderstand selective originalism, the Article argues. if we derided its misleading pretensions and probed no further. The self-avowed originalist Justices almost certainly experience themselves as duty-bound to overturn nonoriginalist holdings in some cases, though not in all, even when the doctrine of stare decisis is too weak to dictate their conclusions as a strict matter of law. And the reasons why, I argue, contain lessons for originalists and nonoriginalists alike: A clear-eyed appraisal of the Justices'functions should inspire the conclusion that the Supreme Court, unlike other courts, is a predominantly lawmaking tribunal that must bear responsibility for the practical and moral desirability of changes that it effects in the fabric of constitutional law. In light Of the Court's distinctive junctions, conclusions about what the Justices ought to do, and indeed have obligations to do, are often best understood as embodying judgments about judicial role morality in addition to law. [ABSTRACT FROM AUTHOR]

In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd in 2018, Gageler J questioned the historical foundations of certiorari for error of law on the face of the record and hinted at the doctrine's possible "burial". In this article, we take up that invitation, and show that the doctrine was, as it were, invented by the English Court of Appeal in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw in 1951. The doctrine is premised on a misreading of older authority. The true position is that certiorari was always concerned with jurisdiction and, save for the peculiar procedure of using certiorari to state a case to King's Bench, decisions were never quashed for mere error of law. Not only is the doctrine historically suspect, it is inconsistent with other aspects of modern Australian administrative law and should be "buried". This article also considers how statutes which refer to the doctrine should now be construed. [ABSTRACT FROM AUTHOR]

This article explores the complex issue of medical marijuana reimbursement in workers' compensation claims. Despite marijuana being federally illegal, many states have legalized it for medical or adult use. The article discusses the varying approaches of different states regarding reimbursement, with some allowing it, some disallowing it, and others being undecided. The U.S. Supreme Court recently declined to review the issue, leaving it up to individual states to decide. The article provides examples of states that permit reimbursement and highlights the importance of state legislation and interpretation in determining whether reimbursement is allowed. It also notes the growing trend of states permitting reimbursement for medical marijuana in workers' compensation cases. [Extracted from the article]

This document provides an overview of the challenges faced by professional wrestlers in the WWE and the need for a wrestlers' union to address these issues. Wrestlers are classified as independent contractors, which means they lack health insurance, benefits, and control over their appearances and activities. The document discusses the low compensation and lack of benefits compared to athletes in other professional sports. It also explores the potential for unionization among WWE wrestlers and the recent court decision that may extend the statutory labor dispute exemption to independent contractors. The document concludes by suggesting that the formation of a union in the WWE is possible, given the competitive market for wrestlers' labor and potential support from organizations like SAG-AFTRA. [Extracted from the article]

In the next Supreme Court term beginning in October 2023, the Justices will hear argument on whether the Mandatory Repatriation Tax (MRT), passed as part of the Trump administration's 2017 Tax Cuts and Jobs Act (TCJA), violates the Sixteenth Amendment. Even if the Moores win on their individual MRT refund suit, the MRT on corporate shareholders could survive-and that tax on mega-companies that have retained billions in overseas affiliates forms the most significant part of the expected MRT tax. Even if the Court agrees that the Sixteenth Amendment authorizes accrual-based taxation, making an annual mark-to-market accrual income tax such as that under section 475 constitutional, the Court could possibly conclude that the MRT look-back period is an unreasonably long period for taxation under the accrual method. [Extracted from the article]

The Supreme Court has granted certiorari in Moore v. United States to consider whether realization is a requirement to have income within the meaning of the Sixteenth Amendment. Both a district court and a panel of the Ninth Circuit had concluded that the Mandatory Repatriation Tax enacted in 2017 was valid even though a married couple was taxed on undistributed earnings of a controlled foreign corporation and the earnings may have been attributable to tax years going back as far as 1987. This article describes the basics of the controversy and considers some of the issues associated with the case, including whether a Court holding that realization is required might call into question the constitutionality of many other Code provisions; whether such a holding would automatically make an unapportioned wealth tax possible; and what effect we should give to the fact that not everyone in 1913, when the amendment was ratified, understood the meaning of income in the same way. [ABSTRACT FROM AUTHOR]

Supreme Court "companion cases" are decisions released on the exact same day that address substantially similar legal or factual matters. The list of consequential Supreme Court decisions that the Justices have resolved as part of a set of companion cases is lengthy: It includes NLRB v. Jones & Laughlin Steel Corp., Korematsu v. United States, Brown v. Board of Education, Terry v. Ohio, Roe v. Wade, Miller v. California, and Gregg v. Georgia. Although it is not surprising that important topics like civil rights and abortion generate significant amounts of litigation, the Supreme Court's practice of conducting plenary review of multiple similar cases and issuing separate decisions resolving each one should give us pause. The Justices have a number of other procedural tools available for disposing of similar matters for which parties seek review. Options include granting certiorari for only one of the cases, vacating and remanding some of the matters, issuing at least one summary disposition, consolidating the cases, or releasing the decisions at very different times. The Court sidesteps these alternative approaches when it issues companion cases. Yet previous scholars have not devoted adequate attention to this practice as a distinct procedural mechanism, with unique characteristics that may motivate its usage. This Note fills that gap by studying some of the Court's most famous companion cases and taxonomizing them into four categories-coordinate hedges, contested hedges, extensional reinforcements, and applicative reinforcements-based on factors including the voting behavior of the Justices and the constitutive decisions' relationships to each other. The Note leverages that taxonomy to frame its analysis of why the Court chose to issue companion cases given all the procedural alternatives. This Note concludes by discussing how the practice of deciding certain sorts of companion cases-in which a majority of the Justices agree that they should resolve similar cases in ostensibly contradictory ways-may improve the Court's legitimacy by accentuating its responsibility and capacity to collaboratively identify subtle distinctions between comparable cases that compel different outcomes. [ABSTRACT FROM AUTHOR]

Although the literature on US Supreme Court agenda-setting is sizable, justice-vote-level multivariate analyses of certiorari are almost exclusively limited to samples of discussed cases from 1986 to 1993. Moreover, these studies have done very little to explore justice-level heterogeneity on certiorari. Here, we address these lacunae by analyzing the predictors of individual justices' cert votes on all paid cases from the 1939, 1968, and 1982 terms. We find substantial justice-level heterogeneity in the weight that justices place on the standard set of forces shaping the cert vote. We also show that some of this heterogeneity is associated with justices' experience and ideological extremism, largely in theoretically predicted ways. In closing, we sound a note of caution on drawing conclusions about effects of justice attributes, when the number of justices is relatively small. [ABSTRACT FROM AUTHOR]

The article reports that the U.S. Supreme Court granted certiorari in four immigration custody and bond review cases. Topics include considered the two of these cases were decided in June 2022 and examines the sheer number of cases the Court recently considered underscores the significance of this area of immigration law.