Courts Commons^™

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witness, Robert P. Mosteller

University of Richmond Law Review

No abstract provided.

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Brief Amicus Curiae Of Professors David L. Callies, James T. Ely, Paula A. Franzese, Nicole Stelle Garnett, James E. Krier, Daniel R. Mandelker, John Copeland Nagle, John Nolon, J.B. Ruhl, Shelley Ross Saxer, A. Dan Tarlock, Laura Underkuffler, And Edward F. Ziegler In Support Of Petitioners, David L. Callies, Nicole Stelle Garnett, John Copeland Nagle

Court Briefs

No. 04-108
Susette Kelo v. City of New London

On Writ Of Certiorari To The Supreme Court of Connecticut

From the Summary of Argument

The Connecticut Supreme Court's decision was in keeping with Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which provides that legislative assertions of public use should be subjected to rational basis review. The application of such broadly deferential review in public use cases is inappropriate. Application of rational basis review to the exercise of eminent domain in cases such as this effectively eviscerates the Fifth Amendment's public use limitation. Moreover, lower courts' responses to …

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

Preface, Jaime L. Henshaw

University of Richmond Law Review

No abstract provided.

Does History Defeat Standing Doctrine?, Ann Woolhandler, Caleb Nelson

Michigan Law Review

According to the Supreme Court, the Federal Constitution limits not only the types of matters that federal courts can adjudicate, but also the parties who can bring those matters before them. In particular, the Court has held that private citizens who have suffered no concrete private injury lack standing to ask federal courts to redress diffuse harms to the public at large. When such harms are justiciable at all, the proper party plaintiff is the public itself, represented by an authorized officer of the government. Although the Court claims historical support for these ideas, academic critics insist that the law …

Institutions Of Learning Or Havens For Illegal Activities: How The Supreme Court Views Libraries, 25 N. Ill. U. L. Rev. 1 (2004), Raizel Liebler

UIC Law Open Access Faculty Scholarship

The role of libraries in American society is varied: libraries act as curators and repositories of American culture's recorded knowledge, as places to communicate with others, and as sources where one can gain information from books, magazines and other printed materials, as well as audio-video materials and the Internet. Courts in the United States have called libraries "the quintessential locus of the receipt of information, "'places that are "dedicated to quiet, to knowledge, and to beauty," and "a mighty resource in the free marketplace of ideas." These positive views of libraries are often in sharp contrast with views by some …

Committee To Evaluate Judicial Conduct And Disability Act, Carl Tobias

Law Faculty Publications

In late May, Chief.Justice William H. Rehnquist appointed the Judicial Conduct and Disability Act Study Committee to analyze how the federal judicial system has implemented the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28 U.S.C. §§ 351-54). That legislation authorizes anyone to file a complaint alleging that a federal appellate, district, magistrate, or bankruptcy judge has "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or is mentally or physically unable to perform the judicial officer's duties. The statute neither prescribes ethical standards nor applies to the United States …

Face To Face With The Right Of Confrontation, Richard D. Friedman

Other Publications

This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court.

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …

Retaining Judicial Authority: A Preliminary Inquiry On The Dominion Of Judges, Larry Catá Backer

William & Mary Bill of Rights Journal

Why do the people and institutions of democratic states, and in particular those of the United States, obey judges ? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing …

Brief Of Amici Curiae The Becket Fund For Religious Liberty, The Catholic League For Religious And Civil Rights, And Historians And Legal Scholars In Support Of Respondent, Richard W. Garnett, Kevin J. Hasson, Roman P. Storzer, Anthony R. Picarello Jr., Gerard V. Bradley

Court Briefs

No. 02-1315
Gary Locke v. Joshua Davey

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

From the Summary of the Argument

The Washington State law at issue in this case disqualifies a student from an otherwise available government benefit, only because the student would use the benefit for a religious purpose. That is the core constitutional offense identified by the court below, and this Court may affirm on that basis alone.

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole

Michigan Law Review

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Michigan Law Review

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …

Government Responsibility For The Acts Of Jailhouse Informants Under The Sixth Amendment, Maia Goodell

Michigan Law Review

Once a criminal investigation has identified a suspect, and adversarial proceedings have begun, the Sixth Amendment confers a right to be represented by counsel at the "critical stages" of the process. The Supreme Court has made clear that the government cannot circumvent this requirement merely by designating a civilian informant to engage in questioning on its behalf. Less clear is when the government is responsible for the actions of an informant; particularly in the case of jailhouse informants, incarcerated individuals who question fellow inmates, government responsibility is a difficult issue for which no clear legal standard has emerged. An examination …

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …

Appellate Courts Inside And Out, Maxwell L. Stearns

Michigan Law Review

While the United States Supreme Court has been the object of seemingly endless scholarly commentary, the United States Courts of Appeals are just now coming into their own as a subject of independent academic inquiry. This is an important development when one considers that the vast bulk of relevant precedents governing most federal court litigation comes not from the Supreme Court, but rather from the United States Courts of Appeals. Because relatively few courts of appeals decisions are reviewed in the Supreme Court, with rare exception, the federal circuit courts provide the functional equivalent of that Court's proverbial "last word." …

Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine

Michigan Law Review

For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …

Arising Under Jurisdiction And Uniformity In Patent Law, Christopher A. Cotropia

Michigan Telecommunications & Technology Law Review

The law governing the Federal Circuit's appellate jurisdiction was brought into question in Holmes Group, Inc. v. Vornado Circulation Systems, Inc. The Federal Circuit's appellate jurisdiction over Vornado's appeal rested solely on Vornado's counterclaim alleging patent infringement by Holmes. Holmes's complaint sought a declaratory judgment of no trade dress infringement and did not include any patent law claims. While the Federal Circuit found appellate jurisdiction over Vornado's appeal based on the counterclaim of patent infringement, the Supreme Court disagreed. The Court focused on the language in 35 U.S.C. § 1338(a), which defines the Federal Circuit's appellate jurisdiction by the statute's …

Public Rights, Private Rites: Reliving Richmond Newspapers For My Father, Laurence H. Tribe

The Journal of Appellate Practice and Process

No abstract provided.

Learning (And Teaching) From Doing, Edward B. Foley

The Journal of Appellate Practice and Process

No abstract provided.

I Couldn't Wait To Argue, Timothy Coates

The Journal of Appellate Practice and Process

No abstract provided.

Why Me?, Walter Dellinger

The Journal of Appellate Practice and Process

No abstract provided.