Supreme Court of the United States Commons^™

The Supreme Court’S Controversial Gvrs – And An Alternative, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year

This Article …

Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone

Faculty Publications

In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. …

Using The Fourteenth Amendment To Protect The Integrity Of Kinship Foster Families, Jennifer Baum, Teresa J. Grogan

Faculty Publications

(Excerpt)

As children’s advocates, we know well the value of an extended family to a dependency case. Living with a family member is often considered by children removed from their parents to be the “second best.” Such arrangements are often more comforting, less socially stigmatizing, and more capable at facilitating children’s normal daily routines, including school, medical care, and religious training, than stranger foster care. The social and psychological benefits of kinship care are well documented. One recent retrospective study concluded that children in kinship foster care have fewer behavioral problems three years after placement than do children who were …

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Faculty Publications

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the trimester test …

Business, The Environment, And The Roberts Court: A Preliminary Assessment, Jonathan H. Adler

Faculty Publications

The Roberts Court has developed a reputation for being a "pro-business" court. This article, prepared for the 2009 Santa Clara Law Review symposium on "Big Business and the Roberts Court," seeks to offer a preliminary assessment of this claim with reference to the Roberts Court's decisions in environmental cases. Reviewing the environmental law decisions of the Roberts Court to date reveals no evidence of a "pro-business" bias. This does not disprove the claim that the Roberts Court is pro-business, but it may suggest the need to refine conventional descriptions of the Roberts Court. The lack of a pro-business orientation in …

Getting The Roberts Court Right: A Response To Chemerinsky, Jonathan H. Adler

Faculty Publications

Dean Erwin Chemerinsky makes a substantial contribution to the narrative of conservative ascendance [within the Roberts Court] in The Roberts Court at Age Three. Chief Justice Roberts and Justice Alito “have been everything that conservatives could have dreamed of and liberals could have feared,” he writes. The two newest justices are forging “a solid conservative voting majority" on the Court. The result is a Court that is “notably more conservative” than its predecessors on most contentious questions. It is, Dean Chemerinsky claims, “the most conservative Court since the mid-1930s.”

To say Dean Chemerinsky overstates his case is an understatement. …

The Failure Of Bowles V. Russell, Scott Dodson

Faculty Publications

The Supreme Court recently decided Bowles v. Russell—perhaps that Term’s most underrated case—which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course—holding the rule mandatory but nonjurisdictional—that would have been more consistent with precedent while resolving the …

The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …

Twombly: The Demise Of Notice Pleading, The Triumph Of Milton Handler, And The Uncertain Future Of Private Antitrust Enforcement, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In a 7-2 decision, the Supreme Court in Bell Atlantic Corp. v. Twombly reversed the Second Circuit and held that a complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray statements of agreement that amounted to legal conclusions, failed as a matter of law to state a claim for an antitrust conspiracy in violation of the Sherman Act. The Court ruled that in order to withstand a motion to dismiss, an antitrust conspiracy complaint must plead such factual material that, if taken as true, would suggest that the defendants have entered into an unlawful agreement. …

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Faculty Publications

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …

Abbott Labs V. Gardner, 387 U.S. 136 (1967), Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Subject Matter Jurisdiction, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

God, Gaia, The Taxpayer, And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court considered standing in two high-profile cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. Both were 5-4 decisions in which the Court decided along traditional, ideological lines, and both decisions may provide an indication of the future direction of the Supreme Court.

In Hein, a five-Justice majority denied taxpayer standing to challenge the Bush Administration's so-called "faith-based initiatives" as a violation of the First Amendment's Establishment Clause. In Massachusetts, the Court broke new ground as it took several steps in a decidedly "liberal" direction. The five Justice …

Congressional Responses To Judicial Decisions, Neal Devins

Faculty Publications

No abstract provided.

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA.

Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including …

Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone

Faculty Publications

In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.” This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and …

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Faculty Publications

No abstract provided.

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Faculty Publications

No abstract provided.

Reckoning With Rapanos: Revisiting "Waters Of The United States" And The Limits Of Federal Wetland Regulation, Jonathan H. Adler

Faculty Publications

Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of "waters of the United States." Federal courts have struggled to define the scope of federal regulatory jurisdiction under the Clean Water Act ("CWA") since the law was adopted.

Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that CWA jurisdiction over private lands is limited...and reaffirmed that federal regulatory authority only extends to those wetlands that have a "significant nexus" to navigable waters of the United States. Nonetheless, the …

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 …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Tiresias And The Justices: Using Information Markets To Predict Supreme Court Decisions, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

(Excerpt)

In ancient Greek mythology, oracles and seers could foretell the actions of gods and kings. With these predictions, ordinary citizens could glimpse the future actions of their rulers, and the recipients treasured those insights.

Such knowledge may be more than myth. This Article explores the power of the information market, an economic instrument that allows groups of participants to merge their collective knowledge to make predictions. Specifically, we discuss the application of information markets to predicting Supreme Court decisions. The implications are significant: Supreme Court rulings determine issues critical to American politics and business, ranging from the Fifth Amendment …

Markets For Markets: Origins And Subjects Of Information Markets, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

(Excerpt)

After the death of Pope John Paul II, a papal conclave convened to elect his successor. The media speculated that certain candidates were the "frontrunners" to watch. At the same time, pools formed on web sites to predict the outcome of the conclave, either for fun (using virtual money) or for profit. Throughout the days that the conclave met in April of 2005, trading continued, and ultimately the various markets predicted both that Cardinal Joseph Ratzinger would emerge as the next pope and that he would choose the name Benedict XVI. After the white smoke signifying a new pope …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler, Ilya Somin

Faculty Publications

The Supreme Court’s recent decision in Kelo v. City of New London has rekindled the debate over “economic development” takings—condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. While such takings have been condemned by many commentators on both the right and the left, environmentalists have been notably absent among Kelo’s critics. Some environmentalists have even defended the Kelo decision and the use of eminent domain to spur private economic development. At the same time, scholarly commentary on Kelo and other economic …

Coercion And Choice Under The Establishment Clause, Cynthia V. Ward

Faculty Publications

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …

The Rehnquist Court: Nineteen Years Of Tax Decisions, F. Ladson Boyle

Faculty Publications

No abstract provided.

The Constitutional Limits To Court-Stripping, Michael J. Gerhardt

Faculty Publications

This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.