Courts Commons^™

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

The Rapid Rise Of Delayed Notice Searches, And The Fourth Amendment "Rule Requiring Notice", Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment's "rule requiring notice."

Congress authorized these "sneak and peek" warrants in the USA Patriot Act of 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5601 in 2012, suggesting that "sneak and peek" searches are becoming alarmingly common. In fact, it is not at all clear whether true "sneak …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Faculty Publications By Year

No abstract provided.

Further Standing Lessons, Heather Elliott

Indiana Law Journal

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here). In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Overrides: The Super-Study, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters …

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

The Story Of Prudential Standing, S. Todd Brown

Journal Articles

Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …

Further Clarification From The High Court On The Limits To The Constitutional Right To Counsel: James Raj S/O Arokiasamy V Pp [2014] Sghc 10, Siyuan Chen, Kenneth Tan

Research Collection Yong Pung How School Of Law

Article 9(3) of the Constitution1 states that “Where a person is arrested, he … shall be allowed to consult and be defended by a legal practitioner of his choice.” However, art 9(3) does not stipulate the point in time at which an arrested person is entitled to consult counsel. The local jurisprudence over the past few decades have affirmed the interpretation that an arrested person is not entitled to access counsel immediately upon arrest, but only after a reasonable amount of time has elapsed. The High Court in James Raj s/o Arokiasamy v Public Prosecutor (“James Raj”) has now shed …

Bond V. United States: Concurring In The Judgment, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

Factual Precedents, Allison Orr Larsen

Faculty Publications

Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

The Appointment And Removal Of William J. Marbury And When An Office Vests, Saikrishna Bangalore Prakash

Notre Dame Law Review

Scholars have ignored the most important question in one of the most famous constitutional law cases, obscuring the machinations that spawned the dispute. This Article sheds light on the events that precipitated Marbury v. Madison and also explains when an appointment vests. Thomas Jefferson famously refused to deliver a commission to William J. Marbury, causing the latter to seek a writ of mandamus from the Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on the grounds that Marbury had not been appointed a justice of the peace precisely because he never had received a commission. In fact, Jefferson’s …

Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication, Veronica Couzo

Notre Dame Law Review

On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation’s first Latina Supreme Court Justice. While many Latinos embraced the idea of having “Sonia from the Bronx” on the bench, others were fearful that her jurisprudence, combined with her background, would result in “reverse racism.” These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership—enlightening her colleagues …

Pretrial Restraint Of Assets: Lawful Governmental Interference With The Right To Counsel Of Choice?, Donna L. Eng

UF Law Faculty Publications

In this, the year of the 50th anniversary of Gideon v. Wainwright, we're read a lot of articles discussing the right to counsel, but none, as far as I recall, discussing the right to counsel of choice. While it may be true that there is no right to counsel of choice for those who are appointed counsel, what about those who are fortunate enough to be able to retain counsel? Isn't being entitled to counsel of your choice a logical extension of Gideon?

Brief Of Eugene Volokh, Richard W. Garnett, Michael Stokes Paulsen, Timothy Zick, William E. Lee, Alan K. Chen, & Ronald J. Krotoszynski, Jr. As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Matthew A. Fitzgerald, Andriana S. Daly, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam-dunk simple” yet the Court got it “slam-dunk wrong.”

Specifically, pro-choice and pro-life scholars alike agreed that the …

Amicus Briefs Of The National Association Of Consumer Advocates In Day V. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), Brian Wolfman

U.S. Supreme Court Briefs

These amicus briefs are likely to interest legal academics and practitioners who write, research, and practice in the areas of (1) federal courts, (2) class actions, (3) separation of powers, (4) constitutional law more generally, and (4) federal litigation.

In Day v. Persels & Associates, 729 F.3d 1309 (11th Cir. 2013), an absent class member objected to a class-action settlement. The objector argued that the settlement was unfair because, among other reasons, it provided no monetary recovery to the class members. In the district court, prior to class certification and settlement, the defendants and the named plaintiff had consented …

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …

Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein

Michigan Law Review

A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …