Jurisprudence Commons^™

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

University of Michigan Journal of Law Reform

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law enforcement …

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Michigan Law Review

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether …

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Michigan Law Review Online

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first—the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as it …

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …

The Supreme Assimilation Of Patent Law, Peter Lee

Michigan Law Review

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand

Michigan Law Review

The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle

Michigan Law Review First Impressions

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons …

Standing's Expected Value, Jonathan Remy Nash

Michigan Law Review

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …

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 …

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 Armed Career …

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Framing The Fourth, Tracey Maclin, Julia Mirabella

Michigan Law Review

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor …

Stipulating The Law, Gary Lawson

Michigan Law Review

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the president. Four Justices strongly challenged the majority's willingness to accept what amounts to a stipulation by the parties to a controlling issue of law. As a general matter the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to …