Law Commons^™

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, 11 Mich. J. Race & L. 477 (2006), Cecil J. Hunt Ii

UIC Law Open Access Faculty Scholarship

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Against Idols: The Court As A Symbol-Making Or Rhetorical Institution, Marie Failinger

Faculty Scholarship

Symbolic politics can be quite powerful. This article pursues the question of how the Supreme Court signifies itself, how it discovers and enacts the metaphors from which it will play its part in the American political drama aimed at containing some of the nightmares of human existence, while affirming and encouraging the possibilities for human flourishing. Embedded in this inquiry is the question of how the Court can signify itself while still preserving the truth-telling and humility necessary to legitimize Court decisions.

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 …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Money As A "Specific" Remedy, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

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 …

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. …

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 …

The Pragmatic Populism Of Justice Stevens's Free Speech Jurisprudence Symposium: The Jurisprudence Of Justice Stevens: Panel V: First Amendment/Voting Rights, Gregory P. Magarian

Scholarship@WashULaw

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court's majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens' pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions' practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

Publications

No abstract provided.

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

Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

Publications

No abstract provided.

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

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 …

Solving The Puzzle Of Mead And Christensen: What Would Justice Stevens Do?, Amy J. Wildermuth

Articles

One area in which I teach and have become increasingly interested over the last few years is administrative law. Although one might expect at a symposium honoring the jurisprudence of Justice Stevens that I might focus solely on his most famous administrative law opinion, Chevron v. Natural Resources Defense Council, Inc., and its two-step test that requires a court to defer to a reasonable agency interpretation if the statute is ambiguous, I have instead decided to take on the United States Supreme Court's more recent consideration of what to do with those actions agencies take that, unlike the bubble rule …

Tiresias And The Justices: Using Information Markets To Predict Supreme Court Decisions, Miriam A. Cherry, Robert L. Rogers

All Faculty Scholarship

This Article applies the emerging field of information markets to the prediction of Supreme Court decisions. Information markets, which aggregate information from a wide array of participants, have proven highly accurate in other contexts such as predicting presidential elections. Yet never before have they been applied to the Supreme Court, and the field of predicting Supreme Court outcomes remains underdeveloped as a result. We believe that creating a Supreme Court information market, which we have named Tiresias after the mythological Greek seer, will produce remarkably accurate predictions, create significant monetary value for participants, provide guidance for lower courts, and advance …

The Story Of Crawford, Richard D. Friedman

Book Chapters

Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …

The Story Of Sony V. Universal Studios: Mary Poppins Meets The Boston Strangler., Jessica Litman

Book Chapters

Sony v. Universal Studios may be the most famous of all copyright cases. People who know nothing about copyright know that the Sony-Betamax case held that home videotaping of television programs is fair use. Paradoxically, although the Supreme Court granted certiorari in the case to decide whether the copyright law permitted consumers to engage in private home copying of television programs, the majority ended up crafting its analysis to avoid answering that question definitively. Instead, it ruled that even if consumers sometimes violated the copyright law when they taped television programs off the air, that violation did not make the …

Tribute, Rehnquist, Innsbruck, And St. Mary’S University, Vincent R. Johnson

Faculty Articles

William H. Rehnquist served as the seventeenth Chief Justice of the United States. During this time, the Chief Justice taught for St. Mary’s University School of Law over four summers, two weeks each July in 1991, 1994, 1998, and 2000. Chief Justice Rehnquist lectured on the Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. Chief Justice Rehnquist felt welcome in Innsbruck, and had earned the St. Mary’s faculty’s fond regard and the students’ admiration.

The memories of the summers spent in Innsbruck with Chief Justice Rehnquist are shared …

Rewriting Shutts For Fun, Not To Profit, Edward H. Cooper

Articles

It has not been easy to reconcile contemporary class-action practice with traditional adversary procedure. For that matter, it is not easy to craft a unitary "class-action" procedure that serves well the many different purposes pursued by the many different species of class actions. The practice has flourished, but few would dare say it has really matured. Many problems remain.

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 …

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

Last October, a group of distinguished tax experts from the European Union and the United States 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 conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …

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

Articles & Chapters

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.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

The Virtues And Vices Of Sovereignty, Sarah Krakoff

Publications

American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …