Supreme Court of the United States Commons^™

Originalism Without Obligation, Gary S. Lawson

Faculty Scholarship

I am truly delighted that Boston University School of Law is hosting a conference on Abner Greene’s Against Obligation1 and Michael Seidman’s On Constitutional Disobedience. 2 Both books launch powerful and much-needed broadsides against the idea of a political obligation to obey the U.S. Constitution, and more generally (whether or not the authors embrace these implications) against the very idea of a political obligation to obey state authorities. I fully agree with both authors that the arguments normally made in favor of a duty of obedience to the Constitution, and by extension to state authorities of any kind, are remarkably …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

An Experiment In Law Reform: Amchem Products V. Windsor, Patrick M. Hanlon

University of Michigan Journal of Law Reform

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into …

Collective Action Federalism And Its Discontents, Neil S. Siegel

Faculty Scholarship

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

In this Essay, I offer a few thoughts in response to Jeffrey Rosen's contribution to this symposium on Jack Balkin's "Living Originalism". I will first focus on what he writes about the "new textualism." I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity.

If the abortion right is ultra vires because a lack of decisive warrant in text, structure, and history trumps mediating equality principles and legal …

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Michigan Law Review

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides …

A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch

Michigan Law Review

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …

Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein

Michigan Law Review

A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove

Faculty Publications

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Fifty Years Before Brady, Colin Starger

All Faculty Scholarship

In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Standing's Expected Value, Jonathan Remy Nash

Michigan Law Review

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …

Brief Of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court granted certiorari in Hill v. Colorado “[b]ecause of the importance of the case.” 530 U.S. 703, 714 (2000). The Court should grant certiorari in this case because of the importance of placing limits on Hill.

The Court does not need to overrule Hill to contain the damage wrought by the First Circuit’s expansion of it. But the Court should contain Hill and thereby prevent further erosion of …

The Supreme Court And Celebrity Culture, Richard A. Posner

Chicago-Kent Law Review

No abstract provided.

Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro

Chicago-Kent Law Review

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from …

Opinion Announcements, Tony Mauro

Chicago-Kent Law Review

When the Supreme Court handed down its landmark decision on the fate of the Affordable Care Act on June 28, 2012, several news organizations rushed to report, incorrectly, that the court had overturned the law. Those making the error did not wait for Chief Justice John Roberts Jr. to complete his twenty-minute announcement of the opinion from the bench. But anyone who had listened to the opinion announcement from start to finish would almost certainly have gotten it right.

This article examines the rarely discussed tradition of Supreme Court opinion announcements and their role in the interplay between the court, …

The Court And The Visual: Images And Artifacts In U.S. Supreme Court Opinions, Nancy S. Marder

Chicago-Kent Law Review

This Article contributes to the literature on the visual and the law by providing new empirical research on the use of images in U.S. Supreme Court opinions. In the trial court, the concern about using images is well known. In the highest court of the land, however, the use of images has been little studied and little discussed. This Article includes a comprehensive review of all images that appear in all opinions between 1997 and 2009. It also examines three paradigmatic images—maps, artifacts, and photos—and how they are used in three opinions. The use of maps and artifacts is the …

Deference To Authority As A Basis For Managing Ideological Conflict, Tom Tyler, Margarita Krochick

Chicago-Kent Law Review

American’s are polarized in their views about a variety of social and economic issues. This raises the question how political and legal institutions can develop policies and practices that will be accepted by all the various sides to a public controversy. One approach is to build legitimacy, since people are generally more willing to defer to legitimate authorities. The results of a study in which people are asked about their willingness to accept decisions made by the Supreme Court or Congress suggests that the process through which institutions make policy decisions shapes deference in ways that are distinct from the …

Beyond The Opinion: Supreme Court Justices And Extrajudicial Speech, Christopher W. Schmidt

Chicago-Kent Law Review

This Article examines how and why Supreme Court justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting justices have sought to make to the public discourse when employing various modes of extrajudicial speech—lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of justices refraining from off-the-bench commentary …

The Ninth Vote In The "Stop The Beach" Case, John Paul Stevens

Chicago-Kent Law Review

No abstract provided.

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type …

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Chicago-Kent Law Review

The Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that our digital age of fluid information has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than …

The U.S. Supreme Court And Information Technology: From Opacity To Transparency In Three Easy Steps, Jerry Goldman

Chicago-Kent Law Review

In this comment, I focus on three areas in which the Supreme Court of the United States could improve information sharing with the public: accessibility, data structure, and information standards. I then propose three simple and low-cost steps to address each of these areas.

Cognitive Bias And The Constitution, Dan M. Kahan

Chicago-Kent Law Review

This article uses insights from the study of risk perception to remedy a deficit in liberal constitutional theory—and vice versa. The deficit common to both is inattention to cognitive illiberalism—the threat that unconscious biases pose to enforcement of basic principles of liberal neutrality. Liberal constitutional theory can learn to anticipate and control cognitive illiberalism from the study of biases such as the cultural cognition of risk. In exchange, the study of risk perception can learn from constitutional theory that the detrimental impact of such biases is not limited to distorted weighing of costs and benefits; by infusing such determinations with …