Supreme Court of the United States Commons^™

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Faculty Publications

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay’s request for appointed counsel. Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Is Morrison Dead? Assessing A Supreme Drug (Law) Overdose, Jonathan H. Adler

Faculty Publications

There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, so unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as-applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary Commerce Clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the “substantial [e]ffects” test, that attenuated connections …

Judicial Federalism And The Future Of Federal Environmental Regulation, Jonathan H. Adler

Faculty Publications

This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes …

Zelman V. Simmons-Harris, Neal Devins

Faculty Publications

No abstract provided.

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

Illinois Brick: A Look Back And A Look Ahead, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In June 1977, the United States Supreme Court decided Illinois Brick Co. v. Illinois, ruling that only those dealing directly with price-fixers, and not others in the chain of distribution, are "injured" within the meaning of Section 4 of the Clayton Act in price-fixing cases. The decision struck the death knell to claims by indirect purchasers that illegal overcharges incurred by first purchasers had been passed-on to them through the distribution chain. The so-called direct purchaser rule of Illinois Brick was clear and unequivocal, the very essence of a bright-line rule. Yet, after over a quarter century, the …

Better Lucky Than Good, Neal Devins

Faculty Publications

No abstract provided.

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Faculty Publications

No abstract provided.

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.

Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya

Faculty Publications

This Article analyzes the United States Supreme Court's numerous and shifting rhetorical discourse paths for declaring whether particular governmental practices constituted unreasonable searches or seizures under the Fourth Amendment to the United States Constitution. It examines how the Court has manipulated classic discourse paths arising from text, history, precedent and structure. It reveals that among and within each of these categories, the Court has created conflicting approaches. The Article argues that the Court's construction of Fourth Amendment reasonableness has depended upon which discourse paths it has selected as well as how it has characterized the values embedded within the discourse …

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely

Faculty Publications

In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided …

Is It Ever Too Late For Innocence? Finality, Efficiency, And Claims Of Innocence, George C. Thomas Iii, Gordon G. Young, Keith Sharfman, Kate B. Briscoe

Faculty Publications

(Excerpt)

[Does it violate the Constitution] to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." ... [l]t is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Justice Scalia, joined by Justice Thomas, concurring in Herrera v. Collins.

Should innocent people be imprisoned as criminals? More …

Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Faculty Publications

No abstract provided.

Supreme Court Employment Law Cases 2001-02 Term, Rafael Gely

Faculty Publications

I set two simple objectives for the article. First, the article will summarize each of the cases. My intent is to provide those unfamiliar with the cases a brief review of the facts and a summary of the Court's reasoning. Parts II through VI provide this discussion, grouping the cases by subject area. Second, in Part VII, the article provides a "big picture" analysis of the various cases. My intent is to identify trends, issues, interesting aspects and features of the Court's term. My objective is to aid in our understanding of the patterns that might affect the Court's treatment …

Picking Up The Pieces After Alexander V. Sandoval? Resurrecting A Private Cause Of Action For Disparate Impact, Derek W. Black

Faculty Publications

The Supreme Court in Alexander v. Sandoval limited plaintiffs' ability to challenge racially inequality and discrimination through lawsuits. The Court held that plaintiffs could no longer bring private causes of action for racially disparate impact under federal regulations. This article analyzes that holding and its detrimental impact on minority communities. The article proposes alternative theories under which plaintiffs' can continue to bring their claims and minimize the impact of the Court's holding.

Clarence Thomas: The First Ten Years Looking For Consistency, Mark C. Niles

Faculty Publications

(Excerpt)

Ten years ago, when George Herbert Walker Bush nominated Clarence Thomas to replace Thurgood Marshall as an Associate Justice of the United States Supreme Court, I, like many Americans and most lawyers, waited with interest to hear information about this soon-to-be-powerful man. I had a vague recollection from my recent law school days of hearing about a young, conservative, black federal judge who might be inline for a nomination to the Court. This vague reference was all that I had heard of Clarence Thomas prior to the Fall of 1991.

When stories about Thomas began to appear in the …

Disability, Employment Policy, And The Supreme Court, Michael Ashley Stein

Faculty Publications

No abstract provided.

Supreme Court Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Festo Decision And The Return Of The Supreme Court To The Bar Of Patents, John F. Duffy

Faculty Publications

No abstract provided.

The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein

Faculty Publications

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (l4th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Faculty Publications

No abstract provided.

Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin

Faculty Publications

No abstract provided.

The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.