Law Commons^™

Schooling The Supreme Court, Christine Chabot

Faculty Publications & Other Works

Supreme Court Justices' uniform professional backgrounds have drawn increasing criticism. Yet it is unclear how diverse professional training would affect the Court's decisions. This Article offers the first empirical analysis of how Justices with diverse professional training vote: It examines a unique period when Justices with formal legal education sat with Justices who entered the profession by reading the law alone.

The study finds that Justices' levels of agreement and politically independent voting vary significantly according to their professional training. In cases which divided the Court, Justices who shared the benefit of formal legal education (1) voted together more often …

Dynamic Surveillance: Evolving Procedures In Metadata And Foreign Content Collection After Snowden, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Market Power Without Market Definition, Daniel A. Crane

Articles

Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …

Enforceability Of Mandatory Arbitration Clauses For Shareholder-Corporation Disputes, Garry D. Hartlieb

Michigan Business & Entrepreneurial Law Review

Investor litigation is an increasingly vexatious field of law. Nearly every time a significant change of control or corporate ownership occurs, plaintiffs’ attorneys file standardized complaints to set in motion class action suits. Ultimately, the settlements shareholders receive fail to achieve the practical effects that parties on both sides desire. Shareholders may receive pennies on the dollar of what they allege was lost by corporate wrongdoing, and, in some cases, shareholders may not receive monetary recovery as the settlement requires only that the corporation to make changes to its governing documents. These suits distract directors and management from the core …

Rules Against Rulification, Michael Coenen

Journal Articles

The Supreme Court often confronts the choice between bright-line rules and open-ended standards — a point well understood by commentators and the Court itself. Far less understood is a related choice that arises once the Court has opted for a standard over a rule: May lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several recent cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.” Rules against …

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …

From Basic To Halliburton, M. Todd Henderson, Adam C. Pritchard

Articles

Securities fraud class actions are big business for lawyers. Since 1996, nearly 4,000 suits have been filed, with the majority resulting in companies paying substantial settlements. The top 10 settlements alone totaled about $35 billion; plaintiffs' lawyers took home billions in fees. Companies paid their own lawyers similar sums for defending them. If spending these gigantic sums on lawyers deterred corporate fraud (that is, if they helped sort cases of actual fraud from mere business reverses), then that might be money well spent. But if lawyers are paid billions without reducing the probability or magnitude of corporate fraud, then from …

Issue 1: Annual Survey 2014 Table Of Contents

University of Richmond Law Review

No abstract provided.

Come Back To The Boat, Justice Breyer!, Richard D. Friedman

Michigan Law Review First Impressions

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral …

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 …

The Frame Of Reference And Other Problems, Richard D. Friedman, Jeffrey L. Fisher

Michigan Law Review First Impressions

George argues that, centuries ago, jurists did not distinguish between testimonial and nontestimonial hearsay, and so the distinction cannot be a historically well-grounded basis for modern confrontation doctrine. The argument proceeds from an inaccurate frame of reference. When the confrontation right developed, principally in the sixteenth and seventeenth centuries, and English defendants—Raleigh among them—demanded that adverse witnesses be brought face to face with them, they were making a procedural assertion as to how witnesses must give their testimony. (Giving testimony is what witnesses in litigation do.) Rarely did they phrase this claim in terms of hearsay, for the simple reason …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Legal Issues Surrounding Christmas In Public Schools, Charles J. Russo, Ralph D. Mawdsley

Educational Leadership Faculty Publications

As the United States becomes increasingly religiously diverse, surprisingly relatively little litigation has occurred over the celebration of religious holy days and holidays in public schools. Although the Supreme Court has addressed Christmas displays on two occasions—in Lynch v. Donnelly (1984) and County of Allegheny v. American Civil Liberties Union (1989)—neither case directly concerned public schools.

The status of holiday celebrations in public schools is a key, if seasonal, issue in light of the importance of religion in the lives of many Americans, as educators seek to teach students to appreciate diversity in all of its manifestations, including religion.

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …

The Trouble With Amicus Facts, Allison Orr Larsen

Faculty Publications

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the …

U.S. Supreme Court Review 2013-2014 Term, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.

The Al Bahlul Argument: Article Iii, Conspiracy, And Precepts Of International Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

If The Supreme Court Listens To Millennials, Same Sex Marriage Will Become Legal, Tanya M. Washington

Tanya Monique Washington

No abstract provided.

Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker

Anne Tucker

In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in …

Amicus Brief In United States V. Windsor By Scholars For The Recognition Of Children's Constitutional Rights, Tanya Washington, Catherine Smith, Susannah Pollvogt

Tanya Monique Washington

No abstract provided.

The Diversity Dichotomy: The Supreme Courts Reticence To Give Race A Capital R, Tanya M. Washington

Tanya Monique Washington

No abstract provided.

The Supreme Court And Affirmative Action: Why Now?, Eric J. Segall

Eric J. Segall

No abstract provided.

Reconceptualizing The Judicial Activism Debate As Judicial Responsibility: A Tale Of Two Justice Kennedys, Eric J. Segall

Eric J. Segall

The academic and political debate over judicial activism has been based on the overriding but patently false assumption that the Supreme Court’s performance can be measured by examining the results that it reaches in constitutional cases. When scholars and politicians equate judicial activism with judicial invalidation of the works of the political branches or the reversal of precedent, however, these commentators don’t reveal anything different than would a pure descriptive account of the Court’s decision and rationale. Moreover, the judicial activism debate is unhelpful because the ambiguous sources of constitutional interpretation cannot privilege fundamental baselines or generate consensus over correct …

Is The Roberts Court Really A Court?, Eric J. Segall

Eric J. Segall

When facing a question that the law does not clearly answer, courts are generally obligated to resolve legal disputes by examining, interpreting, and applying prior positive law such as text and precedent. This Article argues that three cases decided by the Roberts Court – Gonzales v. Carhart, District of Columbia v. Heller, and Citizens United v. Federal Election Commission – exemplify the Supreme Court’s propensity for disregarding prior positive law when deciding cases. The Author contends that the Roberts Court, quite possibly like all the Supreme Courts before it, is not a “court” at all because it does not take …

Supreme Court Justices: The Case For Hanging It Up, Eric J. Segall

Eric J. Segall

No abstract provided.

Wimberly And Beyond: Analyzing The Refusal To Award Unemployment Compensation To Women Who Terminate Prior Employment Due To Pregnancy, Mary F. Radford

Mary F. Radford

In Wimberly v. Labor & Industrial Relations Commission, the Supreme Court interpreted section 3304(a)(12) of the Federal Unemployment Tax Act (FUTA), which requires that states not dent unemployment benefits "solely on the basis of pregnancy," as an antidiscrimination statue, rather that one requiring preferential treatment for pregnant and formerly pregnant women. Professor Mary Radford argues that given the ambiguous legislative history and other Supreme Court precedent in the area of unemployment compensation, Wimberly could just as easily have held that FUTA's language requires preferential treatment to pregnant and formerly pregnant women. She further argues that given the current realities that …

Supreme Flaws: Three Ways To Fix The Supreme Court, Eric J. Segall

Eric J. Segall

No abstract provided.

Health Care, Immigration, And Voting: The Supreme Court And Judicial Power, Eric J. Segall

Eric J. Segall

No abstract provided.

Elena Kagan Can't Say That: The Sorry State Of Political Discourse Regarding Constitutional Interpretation, Neil J. Kinkopf

Neil J. Kinkopf

No abstract provided.

In The U.S. Supreme Court: How To Define Who Qualifies As An 'Employer' Within The Meaning Of Title Vii, Steven Kaminshine

Steven J. Kaminshine

No abstract provided.