Supreme Court of the United States Commons^™

The Need To Overrule Mapp V. Ohio, William T. Pizzi

University of Colorado Law Review

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, …

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions--For The Law And For The Litigants, Scott A. Moss

Publications

Each of the Supreme Court's high school student speech cases reflected the social angst of its era. In 1965's Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality television …

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Publications

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

An Unintended Casualty Of The War On Terror, Aya Gruber

Publications

As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …

Book Review, Derek Kiernan-Johnson

Publications

No abstract provided.

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

Publications

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Publications

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is often difficult, if not impossible, …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Publications

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Publications

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

Publications

No abstract provided.

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

Publications

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Shining A Light On Democracy's Dark Lagoon, Helen Norton

Publications

Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in …

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

Colorado V. Connelly: What Really Happened, William T. Pizzi

Publications

In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

Publications

No abstract provided.

The Courts Under President Obama, Scott A. Moss

Publications

No abstract provided.

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Accounting For Federalism In State Courts: Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hilary Massey

University of Colorado Law Review

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court has provided more leeway to federal officers in the past few decades by limiting the scope of the exclusionary rule, for example. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether to …

The Measure Of Government Speech: Identifying Expression's Source, Helen Norton

Publications

States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content.

In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating …

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.