Supreme Court of the United States Commons^™

The Wine Is In The Mail: The Twenty-First Amendment And State Laws Against The Direct Shipment Of Alcoholic Beverages, Russ Miller

Vanderbilt Law Review

The Internet has revolutionized commerce by providing an easy way for businesses to reach vast numbers of customers, and by allowing consumers to attain products of all sorts with the mere click of a mouse. Some wine consumers, however, feel left behind by the Internet revolution. State laws against the direct shipment of alcohol leave them frustrated because they cannot purchase wine online and have it shipped to their homes. These laws against direct shipment have attracted a significant amount of attention in the news media, and they have recently been challenged in a number of federal courts.

To understand …

Stare Decisis In Historical Perspective: From The Founding Era To The Rehnquist Court, Thomas R. Lee

Vanderbilt Law Review

As numerous statistical studies have noted, the modern Supreme Court has overruled itself at a rate that far exceeds that which prevailed during the Court's early years. But is the accelerated rate a result of a decay in the Court's doctrine of stare decisis? Several critics have presumed so without engaging in any historical analysis. In this Article, Professor Lee offers a detailed historical examination of the evolution of the Supreme Court's overruling rhetoric. The author traces the evolution of important strands of the Rehnquist Court's doctrine of stare decisis from founding-era treatises to early applications in the Marshall and …

Neutral Principles: A Retrospective, Barry Friedman

Vanderbilt Law Review

Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. "Americans tend[ed] to believe that 'playing fair' [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect."' But "then, some scholars.., abandoned the fundamental aspiration toward. . . neutrality in government." "Neutrality" came to be "considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies." The nation was threatened with a return to pre-Enlightenment days, a "return to a world in which it matters …

The Supreme Court, Visibility, And The "Politics Of Presence", Kathryn Abrams

Vanderbilt Law Review

Jane Schacter has made a critical contribution by elaborating the meaning and potential consequences of the Court's holding in Romer v. Evans. At the center of her account is the thought-provoking suggestion that the Court's opinion enables a visibility or "presence" for gays and lesbians in the extended realm of the "political." While I salute her illumination, I am less certain about whether to share her optimism. In this Comment, I will explore the latter question by looking beyond the decision in Romer to other cases involving group-based civil rights. I will probe the effects of Supreme Court decisionmaking on …

Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, Victoria J. Palacios

Vanderbilt Law Review

Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy …

Lamb's Chapel V. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993), John E. Burgess

Vanderbilt Law Review

The First Amendment to the United States Constitution provides the primary foundation for the protection of several individual rights, including free speech and religious autonomy.' At times, how- ever, efforts to protect these rights appear to conflict with competing restraints on state action. The drafters of the First Amendment's Religion Clauses, for example, sought to guarantee religious freedom while maintaining a separation between church and state. The goal or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

Federalism, Untamed, Ann Althouse

Vanderbilt Law Review

Do you rankle at those amorphous rhapsodies about "Our Federalism" indulged in by judges who relegate civil rights litigants to state courts?' Why would anyone see cases in which state officials stand charged of violating the rights of individuals as presenting an occasion for deference to the states? If federal rights take precedence over state policies and practices, is it not perverse to prefer adjudication in the courts that have the strongest bias in favor of state interests? If jurisdiction is a duty and declining jurisdiction consequently a dubious business, shouldn't we reject judge-made doctrine and statutory interpretation that restrict …

Why The Supreme Court Overruled "National League Of Cities", Mark Tushnet

Vanderbilt Law Review

We are now in the midst of a confused era for federalism doctrine. A court of appeals has read the Supreme Court's precedents for at least as much as they are worth in holding that Congress, in enacting the Gun-Free School Zones Act of 1990, exceeded the power the Commerce Clause grants it., The Supreme Court itself has been unable to develop a stable constitutional doctrine about the roles of Congress and the courts in protecting federalism. Every time the Supreme Court has wandered into the federalism forest, it has gotten lost. For a while, scholars believed we understood why. …

Federalism's Future, Jeffrey R. Pettit

Vanderbilt Law Review

Two years have passed since my predecessor, Mike Smith, sat in Professor Barry Friedman's office to begin choosing a topic for the Symposium that now sits before you. Although choosing a topic for a symposium two years in advance of its occurrence can be a difficult task, the topic they agreed upon, Federalism's Future, transcends the risk of becoming outdated. If the Supreme Court's struggle to articulate a "reasoned principle" in balancing the powers and responsibilities of our state and federal governments in Garcia v. San Antonio Metropolitan Transit Authority, and later in New York v. United States,2 is any …

White V. Illinois: The Confrontation Clause And The Supreme Court's Preference For Out-Of-Court Statements, Nancy H. Baughan

Vanderbilt Law Review

The Confrontation Clause, found in the Sixth Amendment to the United States Constitution, provides criminal defendants with the right to confront adverse witnesses.' A literal interpretation of the Confrontation Clause would preclude courts from allowing the admission of all hearsay testimony. The Court has rejected this interpretation, noting that it would render meaningless every exception to the rule against hearsay. Although unwilling to hold that the Confrontation Clause mandates exclusion of all hearsay, the Court has found that the Clause requires the exclusion of some hearsay statements. The Supreme Court has struggled to define the relationship between the exceptions to …

A Reevaluation Of The Canons Of Statutory Interpretation, Joseph H. Bates

Vanderbilt Law Review

This Symposium has its genesis in the Vanderbilt Law Review's inaugural symposium, A Symposium on Statutory Construction, published in 1950.' Although the 1950 Symposium included a Foreword by Justice Felix Frankfurter and contributions by several preeminent scholars in the field, Karl Llewellyn's clumsily titled but succinctly written Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed has eclipsed the Symposium which brought it to light and has persevered as a highly influential, if not definitive, critique of the canons of statutory construction.

Llewelyn's article, in general, attacks legal formalism and …

Challenging The Death Penalty Under State Constitutions, James R. Acker, Elizabeth R. Walsh

Vanderbilt Law Review

Death penalty litigation that reaches the Supreme Court now causes at least as much consternation as hope among opponents of capital punishment. Simply not losing rights that once were considered secure can be tantamount to victory in capital cases decided by the Court,and few defendants and opponents of capital punishment expect much more. It was not always so. Hopes were once high that the Supreme Court, and the federal courts generally, would effectively bring an end to capital punishment in America.

That prospect is now remote, at best. Death row populations are sky rocketing and executions are on the rise. …

Original Intent, The View Of The Framers, And The Role Of The Ratifiers, Ronald D. Rotunda

Vanderbilt Law Review

For much of its history, the Supreme Court has purported to engage in what is called "interpretive" judicial review. Interpretive review occurs when the Court ...

"ascertains the constitutionality of a given policy choice by reference to one of the value judgments of which the Constitution consists-that is, by reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution."

Justice William Brennan, for example, engaged in interpretive review when he argued in his recent Holmes Lecture that the …

The Coercion Test And Conditional Federal Grants To The States, Donald J. Mizerk

Vanderbilt Law Review

In July of 1984 Congress amended the Surface Transportation Assistance Act of 1982' to require the states either to raise their minimum drinking age to twenty-one or forfeit a percentage of their federal highway grant. This congressional action forced the states to make an extremely difficult decision. The states either could enact a law that their residents might not support or forego the federal highway funds that the states desperately needed to complete important highway improvements. Many states were displeased with both options and challenged the constitutionality of Congress' conditional spending program.

The states' legal challenge has initiated renewed discussion …

The Supreme Court And The Definition Of "Security": The"Context" Clause, "Investment Contract" Analysis, And Their Ramifications, Marc I. Steinberg, William E. Kaulbach

Vanderbilt Law Review

In two recent decisions' construing the scope of the federal securities acts, the Supreme Court apparently has undertaken to alleviate some of the confusion and uncertainty surrounding the most fundamental question in securities law: the definition of"security" itself. Much of the existing confusion can be traced to earlier decisions of the Court that first implied, and later held,that the regulatory or offering context in which a particular transaction occurs could function to exclude the transaction from cover-age of the securities laws' anti-fraud provisions. This result could follow even though the transaction in question otherwise might satisfy the traditional Howey or …

Mr. Justice And Mrs. Black: The Memoirs Of Hugo L. Black And Elizabeth Black, Daniel J. Meador

Vanderbilt Law Review

In addition to foreshadowing Supreme Court decisions that followed his death, some of Justice Black's dissents noted in this book, though not yet adopted by a Supreme Court majority, have played a role in lower court decisions. His dissent in Tinker v. Des Moines Community School District expressed the idea that the disruptive activities of high school students are not protected by the first amendment. This view subsequently was reflected in a Ninth Circuit decision, and his Tinker opinion has been favorably cited in other lower court opinions." Justice Black's comments during oral argument in Swann v. Board of Education …

Break The Monopoly Of Lawyers On The Supreme Court, Arthur S. Miller, Jeffrey H. Bowman

Vanderbilt Law Review

The questions these cases pose are: Do lawyers alone have the wisdom to make such sociological and moral decisions as Plessy, Brown, and Roe? Should only lawyers deal with political theory in the way the Supreme Court has in the Legislative Reapportionment Cases? Can only lawyers deal in a definitive way with the troublesome questions concerning the relationship of church and state presented by the Prayer Cases? Although the list of cases may be extended to cover the full range of socioeconomic questions that remain of fundamental importance to this country, the answer to these questions remains the same. No …

Book Review: Louis D. Brandeis And The Progressive Tradition; Brandeis, Paul Brickner

Vanderbilt Law Review

Urofsky has captured the essence of Brandeis in his excellent and informative volume. Urofsky often demonstrates a fine facility for clarifying points and positions with meaningful factual details.His book reveals the depth of scholarship that one would expect from a co-editor of the five volume collection of Brandeis' letters."He recognized the importance of the relationship between Brandeis and Frankfurter and devoted an entire small chapter to their efforts to promulgate their views as described by Bruce Murphy. For a concise but telling biography of Brandeis, from the "people's attorney" to one of the Supreme Court's " nine old men", Urofsky's …

Judicial Jurisdiction: From A Contacts To An Interest Analysis, Luther L. Mcdougal L. Mcdougal Iii

Vanderbilt Law Review

This Article examines whether the courts should shift their focus to a policy or interest analysis in judicial jurisdiction cases. The Article initially identifies some of the theoretical inadequacies of, and practical difficulties with, the Supreme Court's purposefully availing/minimum contacts approach to jurisdictional problems. The Article then outlines an alternative approach that employs a comprehensive form of interest analysis. After setting forth this proposed framework, the Article proceeds to examine Supreme Court decisions since International Shoe from the standpoint of the outcomes that an interest analysis approach might produce. Finally, the Article appraises these varying results and recommends that the …

Earl Warren: The Judge Who Changed America. By Jack Harrison Pollack, Richard Y. Funston

Vanderbilt Law Review

Earl Warren was a decent, personable, and humane man who had the good fortune to preside over the Supreme Court of the United States at a peculiarly propitious moment. That, surely, is enough to say for any man's lifetime, and someday the definitive biography of Warren will say it. In the meantime, it remains some-thing of a mystery why aging liberals find it necessary to canonize the late Chief Justice. Nevertheless, journalist Jack Harrison Pollack's Earl Warren: The Judge Who Changed America is the latest addition to the Warren hagiography. In it you meet Warren,the self-effacing, underpaid, young District Attorney; …

Justice Stevens: The First Three Terms, George C. Lamb, Iii, Charles L. Schlumberger, D. J. Simonetti, James D. Spratt Jr., Joel R. Tew, Douglas W. Ey, Jr. Special Projects Editor

Vanderbilt Law Review

This Special Project undertakes an examination of Justice Stevens' Supreme Court opinions in an effort to identify his philosophical orientations, to evaluate the consistency of his views, and to determine the extent to which he has developed workable analytical methods. To achieve these goals, Justice Stevens' opinions are examined in three contexts: first, the area of federal-state relations,including commerce clause and supremacy clause questions; second, the individual rights area, emphasizing criminal constitutional and first amendment issues, and problems of fifth and fourteenth amendment analysis; and third, questions concerning the proper role of the Supreme Court in the constitutional scheme. Even …

Reason Of Slavery: Understanding The Judicial Role In The Peculiar Institution, A. E. Keir Nash

Vanderbilt Law Review

The results most relevant to the concerns of this Article are of course the effects upon how we judge the judges-for almost always we are sufficiently Whiggish to attempt such a judgment, either explicitly or implicitly. At times the consequence of so summing can be to imagine that one catches the judicial conscience by asking questions phrased as Sentence D's query, whether the judges"collaborated" in a system of racial oppression. When we put the question this way, two unfortunate things happen. First, we create a verbal and historical muddle, for if anything ought to be clear by now it is …

The Early Legal Career Of Howell Jackson, Terry Calvani

Vanderbilt Law Review

Felix Frankfurter observed in 1937 that "American legal history has done very little to rescue the [United States Supreme] Court from the limbo of impersonality."' Subsequently, numerous individual and collective works have focused on the more prominent figures in the history of that institution.' Unfortunately, there remain many justices of the Supreme Court who have received relatively little scholarly attention. Yet, as one political scientist has recently lamented, "[until] there is a fuller awareness of the inter-play between individual personalities and decision making, it is unlikely there will be 'an adequate history of the Supreme Court."

One such individual is …

Judicial Policy-Making And Information Flow To The Supreme Court, Charles M. Lamb

Vanderbilt Law Review

This article is intended as an exploratory step toward filling the gap in the literature by synthesizing the fragmentary knowledge relating to judicial information flow. It attempts to advance the dialogue initiated by Professors Miller and Barron by providing a number of components necessary for an adequate model; it seeks also to suggest additional considerations necessary for a more useful model and thus for a continuing systematic inquiry into the information flow process. Results of the Miller-Barron article supply the background for the work reported here. Times, Roe, and Doe and the Miller-Barron findings are considered in the first two …

Abstention: The Supreme Court And Allocation Of Judicial Power, Randall P. Bezanson

Vanderbilt Law Review

In an era of continually expanding federal judicial power, the Supreme Court has fashioned and employed several devices designed to delegate certain classes of federal question litigation to the state court systems. Among these devices are the doctrines of abstention, comity, and exhaustion of state remedies. Implementation of these doctrines has enabled the Supreme Court to maintain state judicial presence in federal question litigation and retain at least the appearance of a manageable federalized judicial structure. This article will attempt to analyze the function of the abstention doctrines as judicially-created tempering devices. Following a brief discussion of the factors that …

Book Reviews, Wythe Holt, Kermit L. Hall

Vanderbilt Law Review

The recent death of Earl Warren reminds us, rather sadly, that the great Chief Justice and "his" Court have been subjected to withering and sometimes vicious and unfair criticism from within the academic circle.' The heart of the criticism (most charitably put) has been that the Warren Court hastily, simplistically, and even unnecessarily attempted to elevate egalitarianism into a high,perhaps the highest, social value and standard for constitutional and governmental decision making. We like to think that we believe in a democracy free for all-that is the way we portray ourselves propagandistically to the rest of the world-but the truth …

The Court, The Constitution, And Chief Justice Burger, William F. Swindler

Vanderbilt Law Review

Although the constitutional crisis of 1973 has not yet demanded a definitive response from the Supreme Court, it obviously has established a landmark in the ultimate history of Warren Burger's Chief Justiceship. While the unprecedented confrontation between executive and judiciary was not carried beyond the Court of Appeals for the District of Columbia, Burger's old court,' and although the prospective confrontation between executive and Congress did not--at least in its first round-- reach a stage of review on the merits, the questions presented went to the cornerstones of Anglo-American constitutional theory itself. The case of Vice President Agnew raised issues …

The Supreme Court's Jurisdiction--Reform Proposals, Discretionary Review, And Writ Dismissals, James F. Blumstein

Vanderbilt Law Review

With judicial reform a matter of intense public debate, it is essential that one understand the political consequences that may result from the adoption of various reform measures. Moreover, it is important to recognize that an evaluation of any proposed change must proceed from one's conception of the role of the Supreme Court in our society and one's perception of the foundations of its legitimacy. Similar considerations also must shape one's analysis of the rule of four and the Court's practice of dismissing certiorari as improvidently granted. While discretionary review increasingly has politicized a large portion of the Court's work, …

Book Reviews, Francis X. Beytagh, Jr., Robert L. Carter, William E. Miller, Judge

Vanderbilt Law Review

Books Reviewed:

The Supreme Court and the Idea of Progress

by Alexander M. Bickel

New York: Harper & Row, 1970. Pp. xii, 210. $6.50.

Politics, the Constitution and the Warren Court

By Philip B. Kurland Chicago

University of Chicago Press, 1970. Pp. xxv, 222.$9.75.

Reviewer: Francis X. Beytagh, Jr.

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Books Reviewed:

Politics of Southern Equality: Law and Social Change in a Mississippi County

By Frederick M. Wirt

Chicago: Aldine Publishing Co., 1970. Pp. 335. $10.00.

reviewer: Robert L. Carter

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The Apportionment Cases

By Richard C. Cortner Knoxville: University of Tennessee Press, 1970. Pp. ix. 283. $10.00.

reviewer William …

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …