Supreme Court of the United States Commons^™

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

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No abstract provided.

The Courts Under President Obama, Scott A. Moss

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

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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

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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 …

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

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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

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State Courts Unbound, Frederic M. Bloom

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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

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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

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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

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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.

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

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HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

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Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

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Who's Afraid Of Geneva Law?, Aya Gruber

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According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …

A Perspective On Federal Corporation Law, Mark J. Loewenstein

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From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

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Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under § 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United …

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

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This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …

Essentially A Mother, Jennifer S. Hendricks

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This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent.

The article first discusses the "unwed father cases." Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological …

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

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The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

The Incompatibility Principle, Harold H. Bruff

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Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

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Foreword, Richard B. Collins

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Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

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In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

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The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

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

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Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

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This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

"Particular Intentions": The Hillmon Case And The Supreme Court, Marianne Wesson

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The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed identity. The author's investigations into newspaper …

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

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Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

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Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

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In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …