Law Commons^™

The Foreshadow Docket, Bert I. Huang

Faculty Scholarship

Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call …

Professor Justice Ginsburg: Justice Ginsburg's Love Of Procedure And Jurisdiction, Zachary D. Tripp, Gillian E. Metzger

Faculty Scholarship

As two of Justice Ginsburg’s former clerks, we are keenly aware of the popular image of the Justice as the “Notorious RBG”: the champion of women’s rights and the forceful dissenter, strongly disputing the Roberts Court’s conservative turn and articulating the case for the liberal New Deal constitutional vision, with its commitment to protecting individual rights and broad view of national power.

This she did, powerfully and eloquently. But to understand Justice Ginsburg – the person, the Justice, and her jurisprudence – it is also critical to account for her role as the Supreme Court’s leading civil procedure and federal …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that affords gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke expresses …

Supreme Court Review Of State-Court Determinations Of State Law In Constitutional Cases, Henry Paul Monaghan

Faculty Scholarship

The decision in Bush v. Gore and particularly Chief Justice Rehnquist's concurring opinion were widely criticized for their unwarranted intrusion upon the "authoritative" status of the Florida Supreme Court in determining the meaning of Florida election law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (t₁) and the claim is that the state court materially and impermissibly departed from that law at a …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

A Vigil For Thurgood Marshall, Eben Moglen

Faculty Scholarship

Three days after his death, on January 27th, Thurgood Marshall came to the Supreme Court, up the marble steps, for the last time. Congress had ordered Abraham Lincoln's catafalque brought to the Court, and on it the casket of Thurgood Marshall lay in state. His beloved Chief, Earl Warren, had been so honored in the Great Hall of the Court, and no one else. Congress made the right decision about the bier, and it spoke with the voice of the people: no other American, of any age, so deserved to lie where Lincoln slept.

To him, all day on Wednesday, …

No "Sweat"? Copyright And Other Protection Of Works Of Information After Feist V. Rural Telephone, Jane C. Ginsburg

Faculty Scholarship

The Supreme Court's unanimous decision last Term in Feist Publications, Inc. v. Rural Telephone Service Co. proscribed copyright protection for works of information that fail to manifest a modicum of creative originality in selection or arrangement. Discarding a long – if lately uneasy – tradition of U.S. copyright coverage of informational works that display far greater industriousness than imagination, the Court ruled that copyright does not secure the "sweat of the brow" or the investment of resources in the compilation of a work of information. The Court thus stripped away or sharply reduced the copyright protection afforded a variety …

Legislative Theory And The Rule Of Law: Some Comments On Rubin, Peter L. Strauss

Faculty Scholarship

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from …

One Hundred Fifty Cases Per Year: Some Implications Of The Supreme Court's Limited Resources For Judicial Review Of Agency Action, Peter L. Strauss

Faculty Scholarship

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court's docket – and, even more, the growth in the overall level of judicial activity in the nation's courts – for its performance of its judicial task. Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits), editorializes about the increasing bureaucratization of the Court, and passes on to normative questions about what if anything ought to be done to ease the Court's …

The Place Of Agencies In Government: Separation Of Powers And The Fourth Branch, Peter L. Strauss

Faculty Scholarship

For the past few years the Supreme Court has been struggling with issues of government structure so fundamental that they might have been thought textbook simple, yet with results that seem to imperil the everyday exercise of law-administration. Under what circumstances can Congress assign the adjudication of contested issues in the first instance to tribunals that are not article III courts? The past century has witnessed the profuse growth of legislation assigning to special adjudicative tribunals – administrative agencies and other article I courts – the power to hold trial-type hearings that might otherwise have been placed in the article …