Supreme Court of the United States Commons^™

Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel

Faculty Scholarship

In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.

This Article clarifies the …

Issue 1: Annual Survey 2006 Table Of Contents

University of Richmond Law Review

No abstract provided.

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …

Where Sexual Privacy Meets Public Morality: How Williams V. King Is Instructive For The Fourth Circuit In Applying Public Morality As A Legitimate State Interest After Lawrence V. Texas, Douglas E. Nauman

North Carolina Central Law Review

No abstract provided.

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …

The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese

Michigan Telecommunications & Technology Law Review

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR was such …

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …

Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact Of Ebay V. Mercexchange On Innovation, Jeremiah S. Helm

Michigan Telecommunications & Technology Law Review

Before the unanimous decision in eBay v. MercExchange, patent holders were almost always granted an injunction against an infringer. In fact, the Federal Circuit, in deciding eBay, noted that, upon a finding of infringement, an injunction would issue unless there were extraordinary circumstances. The Court, in a brief opinion, disagreed with the Federal Circuit and explained that the injunction issue in a patent case must be analyzed under the traditional four-factor test.[...] Is the four-factor test fairer or better than the Federal Circuit's near-automatic injunction rule? It is certainly more difficult to administer a factor test as compared to a …

21st Century Copyright Law In The Digital Domain Symposium Transcript, Symposium Panelists

Michigan Telecommunications & Technology Law Review

21st Century Copyright Law in the Digital Domain Symposium held at Universtiy of Michigan Law School Friday, March 24, 2006

The Supreme Court Report 2005-06, Julie M. Cheslik, Jamie Landes, Leah Pollema, Michael Shelton

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Faculty Scholarship

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it …

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 …

How Antidiscrimination Law Learned To Live With Racial Inequality, Matthew Lindsay

All Faculty Scholarship

This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for …

Grutter V. Bollinger, Clarence Thomas, Affirmative Action And The Treachery Of Originalism: "The Sun Don't Shine Here In This Part Of Town", André Douglas Pond Cummings

Law Faculty Scholarship

Careful examination of Justice Clarence Thomas's dissenting opinion in the landmark affirmative action case Grutter v. Bollinger is important for a number of reasons: First, as one of the youngest members of the U.S. Supreme Court, Thomas stands a reasonable chance of still being a member of the court in 25 years, the self imposed implosion date (sunset provision) established by Justice O'Connor's majority opinion. No doubt, Thomas relishes the idea of writing the majority opinion that kills affirmative action and racial preferences for good.

Second, much as Justice Harlan's dissenting opinion in Plessy v. Ferguson was used as a …

Section 8: Election Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2006-2007 Supreme Court Preview: Schedule, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: The Roberts Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: The War On Terror, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

2006-2007 Supreme Court Preview: Contents, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 9: Miscellaneous, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 6: Business Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court, Partial Birth Abortion, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brief Amicus Curiae Of Professors Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, And Thomas Ulen In Support Of Respondents In Philip Morris Usa V. Mayola Williams, Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, Thomas Ulen

Faculty Scholarship

There is no dispute that the punitive damages award that was upheld by the Oregon Supreme Court in this case satisfies the most rigorous law and economic standards for rationality. The Court need not credit the analysis of the undersigned amici on this score; the fact that Petitioner’s own amici – most notably law and economics scholars A. Mitchell Polinsky and Steven Shavell – have been unable to find anything economically amiss in the decision below speaks volumes. To be sure, Professors Polinsky and Shavell have filed an amicus brief in support of Philip Morris in this case, just as …

Section 4: Advocacy, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Brief Amici Curiae Of Christian Legal Society, National Association Of Evangelicals, Pro-Life Legal Defense Fund, Alliance Defense Fund And Concerned Women For America In Support Of Petitioner, Gregory S. Baylor, Steven H. Aden, Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 05-1382
Alberto R. Gonzales v. Planned Parenthood Federation of America, Inc.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

For as long as the American public has known about partial-birth abortion, we have—by comfortable and consistent margins—agreed with former Senator Daniel Patrick Moynihan that this gruesome practice is “infanticide, and one would be too many.” Meet the Press (NBC television broadcast, Mar. 2, 1997). Whether we oppose elective abortions as a matter of moral principle or regard a woman’s legal access to abortion as a component of …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …