Supreme Court of the United States Commons^™

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Money As Property: The Effects Of Doctrinal Misallocation On Campaign Finance Reform, Maneesh Sharma

University of Michigan Journal of Law Reform

By applying First Amendment jurisprudence to campaign finance measures, this Note argues that the Supreme Court has misallocated campaign finance within its doctrinal scheme. This doctrinal misallocation has stymied the ability of legislatures to enact effective reforms to reduce the role of money in politics. This Note argues that money in the political process more closely resembles property than speech and should therefore be analyzed under a less stringent property review. This Note concludes by proposing a standard of review developed from the Court's property jurisprudence.

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

Law Clerk Influence On Supreme Court Decision Making: An Empirical Assessment, Todd C. Peppers, Christopher Zorn

Scholarly Articles

Here, we undertake the first effort at assessing the existence and extent of law clerk influence in the U.S. Supreme Court. Drawing upon original survey data on the political ideology of 532 former law clerks, we evaluate the extent to which both the Justice's personal policy preferences and those of his or her law clerks exert an independent influence on the Justice's votes. While our results are preliminary, they nonetheless support the contention that--over and above "selection effects" due to Justices choosing like-minded clerks--clerks' ideological predilections exert an additional, and not insubstantial, influence on the Justices' decisions on the merits. …

Case Note: Golden Gate Restaurant Association V. City And County Of San Francisco: Setting The Stage For Supreme Court Review Of The Most Important Preemption Matter In The History Of Erisa, 41 J. Marshall L. Rev. 995 (2008), Joshua Waldbeser

UIC Law Review

No abstract provided.

Due Process Traditionalism, Cass R. Sunstein

Michigan Law Review

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …

De-Moralized: Glucksberg In The Malaise, Steven D. Smith

Michigan Law Review

Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This Article, written for a symposium on the tenth anniversary of Glucksberg,, discusses that question. Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion writers' …

Friction By Design: The Necessary Contest Of State Judicial Power And Legislative Policymaking, Michael L. Buenger

University of Richmond Law Review

No abstract provided.

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

University of Richmond Law Review

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine

American Indian Law Review

No abstract provided.

Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic

Michigan Law Review

Specific exclusion has become a controversial limitation on the doctrine of equivalents, which is itself an essential and controversial area of patent law. The doctrine of equivalents allows a patentee to successfully claim infringement against devices that are outside of the literal reach of the language used by the patentee in her patent to describe what she claims as her invention. The Supreme Court has prescribed some of the outer limits of the doctrine of equivalents and articulated the underlying policy concerns that inform its analysis-noting that courts should balance protection of the patentee's intellectual property with the public's reasonable …

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part IV …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …

A Constitutional Significance For Precedent: Originalism, Stare Decisis, And Property Rights, Polly J. Price

Faculty Articles

The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court’s subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as …

The Incompatibility Principle, Harold H. Bruff

Publications

No abstract provided.

The Most Dangerous Justice Rides Into The Sunset, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Faculty Publications

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Faculty Scholarship

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

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.

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

NYLS Law Review

No abstract provided.

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

Publications

No abstract provided.

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

Faculty Scholarship

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify …

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Michigan Law Review

The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Michigan Law Review

According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions. As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance. In its enthusiasm for abstraction, constitutional theory has, at times, generated …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Deferring, Frederick Schauer

Michigan Law Review

Many academics, upon encountering a book on deference by a leading legal theorist, would assume that the book was still another contribution to a long and prominent debate about the existence (or not) of an obligation to obey the law. But that would be a mistake. In fact, this is a book not about obligation or obedience but about deference, and it is precisely in that difference that the significance of Philip Soper's book lies. Especially in law, where the Supreme Court (sometimes) defers to the factual, legal, and even constitutional determinations of Congress and administrative agencies, where appellate courts …

“Stop Me Before I Get Reversed Again”: The Failure Of Illinois Appellate Courts To Protect Their Criminal Decisions From United States Supreme Court Review, 36 Loy. U. Chi. L.J. 893 (2005), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.