Legal Theory

Justice Thomas fans create website dedicated to his originalist jurisprudence

Justice Clarence Thomas is beginning his 26th year on the U.S. Supreme Court without Justice Antonin Scalia, who like Thomas was dedicated to an originalist interpretation of the Constitution. Former law clerks and other defenders of Justice Clarence Thomas are highlighting his jurisprudence with a new website called JusticeThomas.com, USA…

Oct 21, 2016 2:18 PM CDT

Feminist legal scholar is representing Roger Ailes in sex harassment suit; she explains why

A feminist legal scholar understands why people are shocked by her decision to help former Fox News CEO Roger Ailes fight a sexual harassment lawsuit filed by Gretchen Carlson. But lawyer Susan Estrich considers Ailes a long-time friend who is being convicted by the media, the Washington Post reports. “The…

Aug 10, 2016 7:00 AM CDT

50-year story of the Miranda warning has the twists of a cop show

The 1966 decision in Miranda v. Arizona set the stage for a legal saga displaying the twists and turns of a cop show.

Aug 1, 2016 4:30 AM CDT

50 years later, Freedom of Information Act still chipping away at government’s secretive culture

On Independence Day 50 years ago, President Lyndon Baines Johnson reluctantly signed into law the Freedom of Information Act. President Johnson thought it was terrible legislation and considered a veto after it was passed by Congress. He signed the bill into law on his Texas ranch instead of at a celebratory event at the White House.

Jul 1, 2016 4:30 AM CDT

Why study the Constitution? It’s old and doesn’t address current concerns, Posner says

Updated: Judge Richard Posner thinks liberal academics are going too far in praising Justice Antonin Scalia after his death. And he questions the need for judges to spend too much time—or even a second—studying the Constitution. Posner made those controversial comments in a post for Slate’s Supreme Court Breakfast Table,…

Jun 29, 2016 8:30 AM CDT

Chemerinsky: These two decisions highlight how Scalia’s absence has affected the court

As the U.S. Supreme Court enters the last month of its term, the impact of having only eight justices already is clear. Some of the most high-profile cases of the year are not being decided, or perhaps even worse, are being resolved on narrow grounds that create more confusion than…

Jun 2, 2016 8:00 AM CDT

Contentious battles between couples over frozen embryos raise legal and ethical dilemmas

When Risa Levine, a real estate attorney in New York City, got married, she wanted nothing more than to have a baby. Her husband at the time also wanted a child, but they weren't able to do so on their own. So they went to a fertility clinic together.

Jun 1, 2016 4:10 AM CDT

Chemerinsky: Should SCOTUS have turned down these election law cases?

Two recent Supreme Court decisions with regard to voting were significant because they did not change the law. Both were unanimous and both raise the question of whether the court should continue to be obligated to review decisions of three-judge courts concerning voting districting. At a time when the court…

May 5, 2016 8:00 AM CDT

Bryan Garner’s tribute to his friend and co-author Antonin Scalia

"Originalism," so called, is perhaps the single issue for which Justice Antonin Scalia, my co-author on two books, was most controversial. I'll never forget his ire—it was full-blown anger—when I suggested, while we were working on Reading Law, that we change the term "originalism" to "historicism." A scholar in England had suggested that we might use that term in preference to originalism, which had long since become a lightning rod in legal language. It's another "ism" of the kind John Lennon lampooned in "Give Peace a Chance." (Citing Lennon was no help to me at all, naturally: Justice Scalia didn't like the Beatles.) The word originalism even sounds like the much-discredited "creationism," which is faux science.

Apr 1, 2016 2:50 AM CDT

What’s the evidentiary standard for emojis?

Shorthand has been around in one form or another since Xenophon described the trial of Socrates with papyrus and a feather. It’s a way to convey information in the shortest, easiest way possible. Today, with keyboards and social media having supplanted handwriting as preferred methods of communication, shorthand often takes…

Feb 1, 2016 12:40 AM CST

Civil Rights Act’s sex-discrimination ban includes orientation, argues EEOC in amicus brief

The Equal Employment Opportunity Commission argues in an amicus brief filed on Wednesday that employment discrimination based on someone’s sexual orientation is unlawful under Title VII of the 1964 Civil Rights Act. The filing was made in the 11th U.S. Circuit Court of Appeals, Bloomberg BNA reports. According to the…

Jan 8, 2016 3:30 PM CST

Scalia: God has been good to US because ‘we have done him honor’

Our country’s constitutional traditions do not require government to be neutral between religion and nonreligion, Justice Antonin Scalia said on Saturday in a speech to Catholic high school students. Scalia said government can’t favor one religion over another, but government has been allowed to support religion over nonreligion for hundreds…

Jan 4, 2016 8:51 AM CST

Chemerinsky: 2 Texas cases before SCOTUS could have big implications for race in the US

During the week of Dec. 7, the Supreme Court will hear arguments in two of the most high profile and likely most important cases of the term. On Tuesday, Evenwel v. Abbott will be argued, which concerns how voting districts should be drawn for state and local elected bodies. On…

Dec 3, 2015 7:30 AM CST

Chemerinsky: 10 lessons from Chief Justice Roberts’ first 10 years

On Monday morning, October 5, the Supreme Court will begin its 11th term with John Roberts as Chief Justice. On Sept. 29, 2005, Roberts became the 17th Chief Justice of the United States. Here are 10 observations about the first decade of the Roberts Court. 1. The court is deciding…

Sep 30, 2015 8:30 AM CDT

Supreme Court’s unsigned rulings favor law enforcement; Reinhardt sees link to racial issues

The U.S. Supreme Court is using brief, unsigned opinions to rule against prisoners challenging their convictions and plaintiffs suing for alleged misconduct by government officials. The opinions find no violations of “clearly established” federal law and no violation of “clearly established” legal principles, so that prisoners’ habeas appeals must fail…

Jul 21, 2015 11:38 AM CDT