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Supreme Court of the United States

2012

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Articles 1 - 30 of 90

Full-Text Articles in Law

Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove Dec 2012

Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove

Popular Media

No abstract provided.


Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros Dec 2012

Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

West Virginia Law Review

No abstract provided.


The Incredible Shrinking Confrontation Clause, Jeffrey Bellin Dec 2012

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Faculty Publications

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court’s decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of “testimonial” statements – the sole form of evidence that the Court now recognizes as implicating the Confrontation ...


The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr Dec 2012

The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr

Michigan Law Review

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles ...


Issue 1: Annual Survey 2012 Table Of Contents Nov 2012

Issue 1: Annual Survey 2012 Table Of Contents

University of Richmond Law Review

No abstract provided.


Supreme Prescriptions America, Take Your Medicine - A Review Of The 2011-2012 U.S. Supreme Court Term, Miller W. Shealy Jr. Oct 2012

Supreme Prescriptions America, Take Your Medicine - A Review Of The 2011-2012 U.S. Supreme Court Term, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.


Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp Oct 2012

Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.

“Authorization” in the ...


Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger Oct 2012

Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger

All Faculty Scholarship

Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady ...


Confronting Supreme Court Fact Finding, Allison Orr Larsen Oct 2012

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.


A Financial Economic Theory Of Punitive Damages, Robert J. Rhee Oct 2012

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement ...


Section 7: Gay Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 7: Gay Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 6: Criminal, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 5: Business, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 5: Business, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: International Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 4: International Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: Election Law, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 3: Election Law, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 2: Roberts Court, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2012

Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark Aug 2012

Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark

Court Briefs

From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit's recent ruling ...


Let's Talk: Judicial Decisions At Supreme Court Confirmation Hearings, Anna Batta, Paul M. Collins, Jr., Tom Miles, Lori A. Ringhand Aug 2012

Let's Talk: Judicial Decisions At Supreme Court Confirmation Hearings, Anna Batta, Paul M. Collins, Jr., Tom Miles, Lori A. Ringhand

Scholarly Works

An investigation of Supreme Court Confirmation hearings reveals many queries posed to nominees reference specific court cases, especially recent decisions, and with questioning often divided along partisan lines. These findings indicate that the hearings are more substantive than is commonly assumed.


Stare Decisis In The Inferior Courts Of The United States, Joseph Mead Jul 2012

Stare Decisis In The Inferior Courts Of The United States, Joseph Mead

Law Faculty Articles and Essays

While circuit courts are bound to fallow circuit precedent under "law of the circuit" the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent. I argue that the different hierarchical levels and institutional characteristics do not account for the differences in practices between circuit and district courts. Rather, district courts can and should adopt a "law of the district" similar to that of circuit courts. Through this narrow proposal, I explore the historical stare decisis practices in federal courts that are not Supreme.


A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine Jun 2012

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence ...


Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton Jun 2012

Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton

Michigan Law Review First Impressions

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the ...


Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel Jun 2012

Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel

Faculty Scholarship

In order to highlight the problems with the NPDB [National Practitioner Data Bank], this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing “predators” from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the “badge of infamy” that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process ...


Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum Jun 2012

Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum

Michigan Law Review

A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court ...


Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler Jun 2012

Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler

Michigan Law Review

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the ...


Issue 4: Table Of Contents May 2012

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.


Who Was William Marbury?, David F. Forte Apr 2012

Who Was William Marbury?, David F. Forte

David F. Forte

Of all the disappointed office seekers in American history, only William Marbury has been so honored as to have his portrait hung in the chambers of the United States Supreme Court alongside that of James Madison. The two titular protagonists to the Marbury v. Madison dispute had no idea that their original contretemps would ever find its way to litigation, let alone eventual mythic significance as the foundation stone of judicial review.


What President Obama Should Have Said About The Supreme Court And The Affordable Care Act, Eric J. Segall Apr 2012

What President Obama Should Have Said About The Supreme Court And The Affordable Care Act, Eric J. Segall

Faculty Publications By Year

No abstract provided.


Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen Apr 2012

Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen

Popular Media

No abstract provided.


Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger Apr 2012

Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger

Michigan Journal of Race and Law

The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take ...