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"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott 2013 Columbia Law School

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing ...


Foreword: Supreme Court Narratives: Law, History, And Journalism, James F. Simon 2013 New York Law School

Foreword: Supreme Court Narratives: Law, History, And Journalism, James F. Simon

Articles & Chapters

No abstract provided.


Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby 2013 University of Miami School of Law

Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby

Articles

No abstract provided.


Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave 2013 University of Miami School of Law

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

Articles

This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.


Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta 2013 Valparaiso University

Substantive Due Process In Exile: The Supreme Court's Original Interpretation Of The Due Process Clause Of The Fourteenth Amendment, Natalie Banta

Law Faculty Publications

No abstract provided.


The Solicitor General And Confession Of Error, Neal K. Katyal 2013 Georgetown University Law Center

The Solicitor General And Confession Of Error, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Confessions of error have a long history. From the very beginning of the Solicitor General's position, we have had confessions of error.

All Solicitors General-it doesn't matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term.


Prop 8, Doma Defenders Rely On Federalism, Arthur S. Leonard 2013 New York Law School

Prop 8, Doma Defenders Rely On Federalism, Arthur S. Leonard

Other Publications

No abstract provided.


Will Supreme Court Rule On Doma?, Arthur S. Leonard 2013 New York Law School

Will Supreme Court Rule On Doma?, Arthur S. Leonard

Other Publications

No abstract provided.


Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie 2013 University of Pennsylvania Law School

Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie

Faculty Scholarship

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section ...


The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor 2013 University of Washington School of Law

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Michigan Telecommunications and Technology Law Review

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"--the recipients of federal funding--to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to ...


What Was Wrong With The Record?, Ellen D. Katz 2013 University of Michigan Law School

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.


Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz 2013 University of Michigan Law School

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.


The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos 2013 University of Michigan Law School

The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos

Articles

This Article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius (NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. Notwithstanding some of the Court’s language, this Article contends that ...


A Cure Worse Than The Disease?, Ellen D. Katz 2013 University of Michigan Law School

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.


Understanding The Establishment Clause: A Revisit, Robert A. Sedler 2013 Wayne State University

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane 2013 University of Michigan Law School

"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane

Articles

In U.S. v. Topco Associates, Inc., Justice Thurgood Marshall announced that "[a] ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.", In The Antitrust Constitution, Thomas Nachbar takes seriously the idea that federal antitrust laws serve a constitutional function. He argues that, contrary to common assumptions, the antitrust laws cannot be understood merely as a form of economic utilitarianism. Rather, they serve the additional purpose of preventing "regulatory harm," the assertion of law-like control over the conduct of others outside the sphere of one's own property interests.


On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi 2013 University of Michigan Law School

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising ...


Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi 2013 University of Michigan Law School

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal ...


Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington 2013 Duke University

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure.1 I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness2 that denounced effective civil procedure as an enemy of economic development.3 I was then commenting adversely on what the Court had done to ...


Hidden Gems In The Historical 2011-2012 Term, And Beyond, John C. Eastman 2012 Chapman University School of Law

Hidden Gems In The Historical 2011-2012 Term, And Beyond, John C. Eastman

John C. Eastman

No abstract provided.


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