ABA Journal

Legal Theory

401 ABA Journal Legal Theory articles.

Weekly Briefs: Fish definition includes bees, court says; judge decries ‘fair-weather originalism’

Bees can sometimes be considered fish, court says

Bees can be protected under the California Endangered Species Act because they are invertebrates within the law’s definition of fish, the California…

Judging Jurisdiction

In July 2020 when U.S. Supreme Court Justice Neil M. Gorsuch read the majority opinion in McGirt v. Oklahoma, Assistant U.S. Attorney Shannon Cozzoni sprang into action. In that moment, she knew what would happen next: Scores of major crime cases would be landing in her federal court district in Tulsa, requiring rapid adjustments and recalibration.

Sen. Cruz asks Jackson about critical race theory at Georgetown Day School, where she is a board member

Republican Sen. Ted Cruz of Texas quizzed U.S. Supreme Court nominee Judge Ketanji Brown Jackson about critical race theory Tuesday, leading to his questions about whether it is taught at a private school where she is a member of the board of trustees.

‘Independent state legislature’ theory in spotlight as SCOTUS refuses to hear map disputes

The U.S. Supreme Court on Monday turned down emergency Republican requests to block two court-drawn legislative maps, even as four justices said they were open to considering a doctrine that would increase legislative power over redistricting.

Only 2 women make list of most cited legal scholars

A list of the 50 most cited U.S. legal scholars of all time contains many well-known names but only two women.

Justice Barrett wants to dispel notion that Supreme Court is made up of ‘partisan hacks’

U.S. Supreme Court Justice Amy Coney Barrett said Sunday the justices are guided by judicial philosophies, rather than political views, but the public might not see it that way.

Federal appeals judge criticizes disparate-impact theory; are his opinions op-ed columns?

A federal appeals judge who is attracting national attention for his “aggressive rhetoric” in legal opinions has written a concurrence criticizing disparate-impact theory, likening it to critical race theory.

‘Common good originalism’ is neither originalist nor a good way to judge, essay says

Some conservatives are backing a more activist brand of judging that reads moral values into the Constitution as a counter to liberals’ push to read the Constitution as a living document that changes with the times.

Supreme Court takes a byte out of computer crime law

A U.S. Supreme Court decision handed down earlier this month has flown a bit below radar compared with the term’s bigger cases, but it is one that might be of interest to anyone who has ever bent the truth on a dating website or on social media, shopped or checked sports scores on a work computer, or happens to be a fan of the 1983 movie WarGames.

Is it a 3-3-3 Supreme Court? Barrett opinion gives Goldman Sachs partial win in class-action case

In another case with an unusual lineup, the U.S. Supreme Court partly ruled for Goldman Sachs on Monday in a securities class action alleging the investment bank made generic statements that maintained its inflated stock prices.

Justice Barrett has aligned most often in argued cases with these 2 SCOTUS justices

Justice Amy Coney Barrett, the U.S. Supreme Court’s newest justice, has aligned 100% of the time in argued cases with conservative Justices Clarence Thomas and Neil M. Gorsuch, according to an analysis by CNN reporter Joan Biskupic.

Breyer says expanding Supreme Court could erode trust, proponents should ‘think long and hard’

U.S. Supreme Court Justice Stephen G. Breyer said Tuesday proponents of expanding or changing the structure of the U.S. Supreme Court should “think long and hard before embodying those changes in law.”

Law prof proposes a middle-ground theory of judging to guide centrist judges

Conservative judges are guided by the original meaning of the Constitution, while liberal judges view the Constitution as a living document. But what about centrist judges?

Do origin stories define or help refine constitutional interpretation?

All lawyers are storytellers. And Supreme Court justices are not exceptions. Outcomes in constitutional law are typically predicated upon the stories the justices tell—interpretations of foundational “origin stories”—that shape understandings of the law and who we are as a people, writes Philip N. Meyer.

Should the Federalist Society reckon with members who aided Trump’s false election claims?

Some members of the Federalist Society are arguing that colleagues who helped President Donald Trump make false claims of widespread election fraud should be distanced from the conservative group.

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