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Clouded Precedent: Tandon v. Newsom and Its Implications for the Shadow Docket
Get PDFThe Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment. But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform
Houston, We Have a Problem in the Dispute Resolution Field
Get PDFParties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying. Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence. And certainly mediators should understand basic concepts of mediation
Impeachment in a System of Checks and Balances
Get PDFMeasured by any yardstick, it is hard to think that the first impeachment of President Donald Trump was particularly successful. But there are important broader questions raised particularly by the first Trump impeachment that have significance for how we think about the impeachment power moving forward. If future impeachment efforts are to be more successful, or even useful, Congress will have to understand the nature of the constitutional task that it is undertaking
Regulating the Relationship Between Franchisor and Franchisee: Has the American Dream Become a Corporate Scheme?
Get PDFFranchisors sell the American Dream to franchisees, marketing it as an opportunity to effectively “own your own business,” while minimizing initial investment. Despite this, franchise agreements often unfairly favor the franchisor—this makes sense considering the need for franchisors to set standards of performance and consistency for the brand; however, this leaves franchisees exposed to unfair and deceitful practices that often are typical of the franchising system. When Franchisors base their corporate franchise model on serving their franchisees and increasing system-wide profitability, franchise systems thrive; however, when franchisors obsess over their own bottom-line, rather than that of the franchisee, it can be detrimental to both parties. The dissonance in the interests of franchisees and franchisors has become more prominent as contemporary advancements are made in the industry. The best franchise systems find a balance between the interests of the franchisor and the franchisee to contribute to overall success. Increasing regulation on the franchise industry and incentivizing franchisors to become more focused on franchisee profitability will allow for greater mutual success and increase the likelihood of long-term sustainability of the franchise model
How Impeachment Works
Get PDFPresidential impeachments test nearly everyone. Whereas constitutional adjudication largely tests the limits and powers of governmental institutions, presidential impeachments do that and more. They test whether and how members of Congress may fulfill their oaths to do “impartial justice according to the laws and Constitution of the United States;” whether, or to what extent, presidents have abused their powers; how well the American public and media understand the stakes and issues involved in the impeachment process; and to what extent Article III courts refrain from reviewing any aspect of impeachment trials. A popular concern for most observers and commentators during the two impeachments of Donald Trump was that these institutions – particularly Congress, the President, and the media – failed the American people and the Constitution
Waste-d Chance: The Risk of Ignoring Judicial Federalism in Local Controversies
Get PDFThe Manhattan Project caused death and destruction in Hiroshima and Nagasaki and sparked a nuclear arms race around the world. The Project’s legacy is most closely associated with Los Alamos, New Mexico, the site of the primary research laboratory. But, the primary research site, smaller project sites, and disposal sites throughout the country have been plagued by environmental consequences. Its effects are still being felt today, even in the world of civil procedure. One landfill in St. Louis, in particular, holds significant amounts of nuclear waste from the program and has recently sparked major class-action litigation