Supreme Court of the United States Commons^™

Post-Teva: When Will The Federal Circuit Embrace The Deferential Standard Of Review For Patent Claim Construction?, Katherine E. White

Law Faculty Research Publications

No abstract provided.

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

Halliburton Ii: A Loser's History, Adam C. Pritchard

Articles

The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …

A Functional Theory Of Congressional Standing, Jonathan R. Nash

Faculty Articles

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …

Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn

Faculty Articles

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and …

Equality And Difference - The Restrained State, Martha Albertson Fineman

Faculty Articles

Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative wellbeing of individuals. As a check on state involvement, our cramped notion of equality limits the state's ability to affirmatively address economic, political, social, and structural inequalities.

As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as …

Modern "Sappers And Miners": The Rehnquist And Roberts Courts And The Civil Rights Act Of 1964, Jonathan K. Stubbs

Law Faculty Publications

o orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation. For illustrative purposes, this section ex- plores the impact on Title Two of the Act. Finally, the article closes with a few observations of the implications of the …

The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …

Active Avoidance: The Modern Supreme Court And Legal Change, Neal Kumar Katyal, Thomas P. Schmidt

Faculty Scholarship

The Supreme Court in the last few years has resolved some of the most divisive and consequential cases before it by employing the same maneuver: construing statutes to avoid constitutional difficulty. Although the Court generally justifies the avoidance canon as a form of judicial restraint, these recent decisions have used the canon to camouflage acts of judicial aggression in both the statutory and constitutional spheres. In particular, the Court has adopted dubious readings of federal statutes that would have been unthinkable in the canon’s absence. We call this move the “rewriting power.” The canon has also been used to articulate …

Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt

Faculty Scholarship

At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and …

The Most Scholarly Justices, Brian L. Frye

Law Faculty Scholarly Articles

Supreme Court justices both use and produce legal scholarship. This article identifies the ten most scholarly justices, based on both productivity and impact.

"Following-To-Join" The Fifth And Ninth Circuits: Why The Supreme Court In Scialabba V. Cuellar De Osorio Erred In Interpreting The Child Status Protection Act, Justin Youngs

Loyola of Los Angeles Law Review

No abstract provided.

Selling Chevron, Christine Chabot

Faculty Publications & Other Works

No abstract provided.

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero Ii

Scholarly Works

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.

The racial history of the Roberts Court is centrally informed by the context and …

Interruptions In Search Of A Purpose: Oral Argument In The Supreme Court, October Terms 1958–60 And 2010–12, Barry Sullivan, Megan Canty

Utah Law Review

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

Modern Sappers And Miners: The Rehnquist And Roberts Courts And The Civil Rights Act Of 1964, Jonathan K. Stubbs

Richmond Public Interest Law Review

this article is organized as follows. To orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation. For illustrative purposes, this section explores the impact on Title Two of the Act. Finally, the article closes with a few observations …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

Scholarly Works

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the …

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Publications

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu

Faculty Works

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …

No Execution If Four Justices Object, Eric M. Freedman

Hofstra Law Review

Under longstanding Supreme Court practice, a certiorari petition is granted if four Justices vote to do so. But such success may be of little value if the petitioner is a capital prisoner whose litigation adversary, the government, has chosen to set an execution date. Five votes are needed to stay an execution. In capital cases under warrant, then, a prisoner may be executed notwithstanding the decision of the Court to review his or her case.

This sometimes-fatal anomaly has for more than 30 years been the subject of frictions among the Justices, critical commentary by the profession, and visible and …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

No College, No Prior Clerkship: How Jim Marsh Became Justice Jackson’S Law Clerk, John Q. Barrett

Faculty Publications

(Excerpt)

In his first four years on the Supreme Court, Justice Robert H. Jackson employed, in sequence, three young attorneys as his law clerks. The first, John F. Costelloe, was a Harvard Law School graduate and former Harvard Law Review editor who until summer 1941 was, like then attorney general Jackson, working at the U.S. Department of Justice. Costelloe became Justice Jackson’s first law clerk shortly after his July 1941 appointment to the Court and stayed for a little over two years. Jackson’s next law clerk, Phil C. Neal, came to Jackson in 1943 after graduating from Harvard Law School, …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

Caperton's Next Generation: Beyond The Bank, Jed H. Shugerman, Debrah L. Basset, Gregory S. Parks, Dmitry Bam, Rex R. Perschbacher

Faculty Scholarship

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court's decision in 'Caperton v. A.T. Massey Coal Co.' discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University.

Stare Decisis In The Second-Best World, Randy J. Kozel

Journal Articles

If judges disagree about the proper interpretation of the law, can they find common ground in the treatment of precedent? The doctrine of stare decisis weighs the value of legal continuity against the value of legal accuracy. But that analysis is complicated by pervasive disputes over the implications of legal error. Likewise, the scope of a precedent's impact in future cases depends on underlying assumptions about the ends and means of legal interpretation. When those assumptions vary among judges, so too will applications of stare decisis. For stare decisis to promote the continuity and impersonality of law, it requires an …