Supreme Court of the United States Commons^™

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

The Changing Discourse Of The Supreme Court, Stephen M. Johnson

The University of New Hampshire Law Review

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style.

There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing …

Fast Forward Fifty Years: Protecting Uninhibited, Robust, And Wide-Open Debate After New York Times Co. V. Sullivan, Amy K. Sanders

Georgia Law Review

In September 2013, California Governor Jerry Brown signed into law SB 606, criminalizing attempts to photograph or videotape a child if the reason for doing so was because the child's parent is a celebrity or public official. Not surprisingly, the measure garnered significant support from Hollywood's elite, including legislative testimony from actress-moms Halle Berry and Jennifer Garner. Against the outcry of the California Broadcasters Association and the California Newspaper Publishers Association, the California Legislature approved the measure, which raises current penalties for first-time offenders to one year of incarceration and/or a $10,000 fine (up from a maximum of six months …

Conferring Dignity: The Metamorphosis Of The Legal Homosexual, Noa Ben-Asher

Faculty Publications

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts’s assertion contains the implied assumption that the only racial discrimination that exists—or at least the only kind that matters under the Constitution—is explicit and susceptible to conscious control. Decades of …

Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, Martin Gelter, Mathias M. Siems

Faculty Scholarship

The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes …

Law, Violence, And The Neurotic Structure Of American Indian Law, Sarah Krakoff

Publications

No abstract provided.

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …

From Google To Tolstoy Bot: Should The First Amendment Protect Speech Generated By Algorithms?, Margot Kaminski

Publications

No abstract provided.

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …

Too Strict?, Richard B. Collins

Publications

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …

The Conflict Of Visions In Nfib V. Sebelius, Jonathan H. Adler

Faculty Publications

In 2010, few anticipated the fate of healthcare reform would rest with the Supreme Court. Yet National Federation of Independent Business v. Sebelius [hereinafter NFIB] emerged as a watershed case that could remake the constitutional landscape. NFIB presented a conflict between two constitutional visions of federal power and the role of the courts in policing such limits--an unconstrained vision, under which limits on federal power are enforced primarily through the political process, and a constrained vision, under which constitutional limits on federal power are enforced by the courts. The contrasting views of the constitutionality of the individual mandate and …

The Freedom To Marry: Politics And Law In 2014 And Beyond, Ari Ezra Waldman

Other Publications

No abstract provided.

With 30 States Set For Marriage Equality, Road Ahead Still Uncertain, Arthur S. Leonard

Other Publications

No abstract provided.

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

Articles

The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments. …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

Hollowed-Out Democracy, Kate Andrias

Articles

Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …

Financing Elections And 'Appearance Of Corruption': Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

All Faculty Scholarship

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

The Supreme Court And The Rehabilitative Ideal, Chad W. Flanders

All Faculty Scholarship

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitativeideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual. The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense …

The Stealth Press Clause, Sonja R. West

Georgia Law Review

As we reflect on the 50th anniversary of New York Times Co. v. Sullivan, there will likely be many tributes to Sullivan as one of the Supreme Court's most significant press cases. Yet Sullivan was not really a "press" case. The Supreme Court, in its opinion, granted all speakers greater protection against defamation liability regardless of whether they were a member of the press. Sullivan is not the only famous so-called "press" case that was not just about the press. Several more "not-just-the-press" victories followed in Sullivan's wake. New York Times Co. v. United States (the "Pentagon Papers case"), for …

Scandal! Early Supreme Court News Coverage And The Justice-Journalist Divide, Amy Gajda

Georgia Law Review

In January of 1900, United States Supreme Court Associate Justice Henry Brown (author of Plessy v. Ferguson) had apparently just about had it with the press. He gave what was called "[t]he principal address" before members of the New York State Bar Association in Albany and focused not principally on law, but on what he called journalism's sensationalistic methods.' "Ugly stories are told," he told the gathered attorneys, "of spies put upon houses to unearth domestic scandals or upon the steps of public men to ferret out political secrets," including early reports of court decisions. The greatest of the cruelties …

The Impact Of Clapper V. Amnesty International Usa On The Doctrine Of Fear-Based Standing, Amanda M. Mcdowell

Georgia Law Review

The Supreme Court's 2013 decision in Clapper v. Amnesty International USA dealt with the government's electronic surveillance authority under the Foreign Intelligence SurveillanceAct (FISA) Amendments. In a 5- 4 opinion, the Court held that a variety of U.S. persons, including attorneys and media organizations, did not have standing to challenge the constitutionality of the FISA Amendments because the plaintiffs' fear of future unlawful surveillance was not "certainly impending." Depending on how lower courts choose to interpret Clapper, the decision could have a significant impact on the doctrine of fear-based standing, which allows plaintiffs to establish standing based on fear of …

Mixed Signals On Summary Judgment, Howard Wasserman

Faculty Publications

This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

The Marrow Of Tradition: The Roberts Court And Categorial First Amendment Speech Exclusions, Gregory P. Magarian

Scholarship@WashULaw

INTRODUCTION The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court’s helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games to commercial speech to campaign fi- nance regulation. In all those areas, the Court has handed import- ant victories to First Amendment claimants. Free speech advocates’ conventional (not to say universal) view of this Court is adoring. Renowned First Amendment …

Human Rights After Kiobel: Choice Of Law And The Rise Of Transnational Tort Litigation, Roger P. Alford

Journal Articles

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

The purpose of this Article is to outline the future …

Revisiting The Influence Of Law Clerks On The U.S. Supreme Court's Agenda-Setting Process, Christina L. Boyd, Ryan C. Black, Amanda C. Bryan

Scholarship@WashULaw

Do law clerks influence U.S. Supreme Court Justices’ decisions in the Court’s agenda-setting stage? For those Justices responding to their own law clerks’ cert recommendations, we expect a high degree of agreement between Justice and clerk. For non-employing Justices, however, we anticipate that the likelihood of agreement between clerk and Justice will vary greatly based on the interplay among the ideological compatibility between a Justice and the clerk, the underlying certworthiness of the petition for review, and the clerk’s final recommendation. Relying on a newly collected dataset of petitions making the Court’s discuss list over the 1986 through 1993 Terms, …

In New York Times Co. V. Sullivan, The Supreme Court Got It Right Then- And Now, David G. Savage

Georgia Law Review

On April 5, 1960, Ray Jenkins, a city editor for the Alabama Journal,the afternoon paper in Montgomery, was having lunch at his desk and skimming through the old papers that had piled up. They included a week-old copy of the New York Times. He spotted an item that had a local angle, and he wrote a thirteen-paragraph story for that day's paper. "Sixty prominent liberals, including [former First Lady] Eleanor Roosevelt, have signed a full page advertisement in the New York Times appealing for contributions to 'The Committee to Defend Martin Luther King and the Struggle for Freedom in the …