Jurisprudence Commons^™

The Supreme Assimilation Of Patent Law, Peter Lee

Michigan Law Review

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich

Michigan Journal of Environmental & Administrative Law

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

Standing Uncertainty: An Expected-Value Standard For Fear-Based Injury In Clapper V. Amnesty International Usa, Andrew C. Sand

Michigan Law Review

The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of …

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

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 Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Viva Conditional Federal Spending!, Samuel R. Bagenstos

Articles

From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to …

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 …

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle

Michigan Law Review First Impressions

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons …

Standing's Expected Value, Jonathan Remy Nash

Michigan Law Review

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …

The Policeman's Duty And The Law Pertaining To Citizen Encounters, Charles M. Oberly Iii

Pepperdine Law Review

In this article the author, by case analysis, identifies the confusion facing police officers when dealing with stop and frisk situations and suggests adoption of the Model Rules of Stop and Frisk as a possible solution to the problem.

A Barometer Of Freedom Of The Press: The Opinions Of Mr. Justice White , Michael J. Armstrong

Pepperdine Law Review

Since the Zurcher v. Stanford Daily decision which was authored by Justice Byron F. White, the news media has become increasingly concerned with its' first amendment protections from governmental searches. Since Justice White has been the voice of the United States Supreme Court on this very issue, the author submits that an examination of Justice White's media related opinions can serve as a "barometer" for the constitutional protections of the news media. The author examines the use of Justice White to the Supreme Court, his staunch adherence to stare decisis, and the historical foundation of the first amendment as they …

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Social Justice And The Warren Court: A Preliminary Examination, Arthur S. Miller

Pepperdine Law Review

Whether courts should attempt to advance social justice is a much debated topic in American jurisprudence. The conventional wisdom about the judicial process is to the contrary. In this article, Professor Arthur S. Miller suggests that the Supreme Court's innovative civil rights and civil liberties decisions during Chief Justice Earl Warren's tenure had the ultimate effect of helping to preserve the status quo of the social order. Its decisions, coming at a time of economic abundance, were a means of siphoning off discontent from disadvantaged groups at minimum social cost to the established order. The "activist" decisions under Warren were …

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

All Faculty Scholarship

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos

Articles

This Article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius (NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. Notwithstanding some of the Court’s language, this Article contends that the case …

Statutory Interpretation Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making , R. Randall Kelso

Pepperdine Law Review

No abstract provided.

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler

Michigan Law Review

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …

Swing Votes On The Current Supreme Court: The Joint Opinion In Casey And Its Progeny, R. Randall Kelso, Charles D. Kelso

Pepperdine Law Review

No abstract provided.