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Supreme Court of the United States

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Articles 2101 - 2130 of 3212

Full-Text Articles in Constitutional Law

Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman Mar 2006

Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman

Vanderbilt Law Review

"One person, one vote" sounds like a simple mathematical equation. Actually, it isn't quite that easy, but over the last forty years, the Supreme Court has distilled a fairly stable and predictable test for resolving the basic issue of equal representation: how much population difference between districts is permissible? In one area of representation, however, the Court has gotten the math wrong. In its only opinion on the decennial apportionment of Congress, the 1992 case U.S. Department of Commerce v. Montana, the Court punted. Rather than apply its well-established test from the districting cases, the Court deferred to Congress on …

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"There Is Only One Equal Protection Clause": An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming Mar 2006

"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 …

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Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint Jan 2006

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.

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Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jan 2006

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 …

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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 Jan 2006

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 …

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In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano Jan 2006

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

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Exploring The Myths About The Ninth Circuit, Stephen Wermiel Jan 2006

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman Jan 2006

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

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The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall Jan 2006

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

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Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien Jan 2006

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

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The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker Jan 2006

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

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Legitimizing Error, Rebecca E. Woodman Jan 2006

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

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Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar Jan 2006

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 …

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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 Jan 2006

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 …

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Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker Jan 2006

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 …

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We Really (For The Most Part) Mean It!, Richard D. Friedman Jan 2006

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 …

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Effective Alternatives To Causes Of Action Barred By The Eleventh Amendment, Jesse H. Choper, John C. Yoo Jan 2006

Effective Alternatives To Causes Of Action Barred By The Eleventh Amendment, Jesse H. Choper, John C. Yoo

NYLS Law Review

No abstract provided.

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Reconceptualizing Federalism, Erwin Chemerinsky Jan 2006

Reconceptualizing Federalism, Erwin Chemerinsky

NYLS Law Review

No abstract provided.

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The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker Jan 2006

The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker

NYLS Law Review

No abstract provided.

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The Marriage Protection Act: A Lesson In Congressional Over-Reaching, Sarah Kroll-Rosenbaum Jan 2006

The Marriage Protection Act: A Lesson In Congressional Over-Reaching, Sarah Kroll-Rosenbaum

NYLS Law Review

No abstract provided.

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Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic Jan 2006

Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic

Michigan Law Review

This Note argues that the Supreme Court's recent jurisprudence regarding morals legislation mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with …

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Witnesses In The Confrontation Clause: Crawford V. Washington, Noah Webster, And Compulsory Process, Randolph N. Jonakait Jan 2006

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

Articles & Chapters

No abstract provided.

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The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua Jan 2006

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 …

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William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett Jan 2006

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 …

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Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman Jan 2006

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.

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Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun Jan 2006

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

Publications

No abstract provided.

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Judicial Power And Mobilizable History, Richard A. Primus Jan 2006

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 …

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The Too Easy Historical Assumptions Of Crawford V. Washington, Randolph N. Jonakait Jan 2006

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

Articles & Chapters

No abstract provided.

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Should The Supreme Court Fear Congress?, Neal Devins Jan 2006

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

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Coercion And Choice Under The Establishment Clause, Cynthia V. Ward Jan 2006

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. …

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