Supreme Court of the United States Commons^™

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …

Section 1: Moot Court, Partial Birth Abortion, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Military Commissions Act, Coerced Confessions, And The Role Of The Courts, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Faculty Publications

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …

The Democratic Prosecutor: Explaining The Constitutional Function Of The Federal Grand Jury, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

'There Is Only One Equal Protection Clause': An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming

Faculty Scholarship

"There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases."1 These words open Justice John Paul Stevens's famous concurring opinion in Craig v. Boren.2 That was the first case in which the U.S. Supreme Court applied "intermediate" scrutiny to gender-based classifications and thus carved out a third tier of equal protection analysis between strict scrutiny and deferential rational basis scrutiny. Craig was decided in 1976, at the beginning of Justice Stevens's long and distinguished …

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Witnesses In The Confrontation Clause: Crawford V. Washington, Noah Webster, And Compulsory Process, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker

Articles

When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for the same …

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

Publications

This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar

Articles

June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …

Coercion And Choice Under The Establishment Clause, Cynthia V. Ward

Faculty Publications

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …

The Too Easy Historical Assumptions Of Crawford V. Washington, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …