Supreme Court of the United States Commons^™

Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer

Michigan Law Review First Impressions

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …

The Crawford Debacle, George Fisher

Michigan Law Review First Impressions

First a toast—to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the tenth anniversary of their triumph: What they achieved in Crawford is every lawyer’s dream. By dint of sheer vision and lawyerly craft, they toppled what many saw as a flawed confrontation-law regime and put in its place one that promised greater justice. For that, much applause is due. Still there’s no denying their doctrine’s a muddle, if not as conceived, then as realized. Consider the count: Four justices almost agree on Crawford’s contours but patch over the issues that divide them. A fifth justice …

Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher

Michigan Law Review First Impressions

Imagine a world . . . in which the Supreme Court got it right the first time. That is, imagine that when the Supreme Court first incorporated the Confrontation Clause against the states, the Court did so by way of the testimonial approach. It’s not that hard to envision. In Douglas v. Alabama—issued in 1965, on the same day the Court ruled that the Confrontation Clause applies to the states—the Court held that a nontestifying witness’s custodial confession could not be introduced against the defendant because, while “not technically testimony,” the confession was “the equivalent in the jury’s mind …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough

Michigan Telecommunications & Technology Law Review

35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the …

Gender-Conscious Confrontation: The Accuser-Obligation Approach Revisited, Michael El-Zein

Michigan Journal of Gender & Law

The Supreme Court’s recent Confrontation Clause decisions have had a dramatic effect on domestic violence prosecution throughout the United States, sparking debate about possible solutions to an increasingly difficult trial process for prosecutors and the survivors they represent. In this Note, I revisit and reinterpret the suggestion by Professor Sherman J. Clark in his article, An Accuser-Obligation Approach to the Confrontation Clause,1 that we should view the Confrontation Clause primarily as an obligation of the accuser rather than a right of the accused. Specifically, I reevaluate Clark’s proposition using a gendered lens, ultimately suggesting a novel solution to the problem …

The True Legacy Of Atkins And Roper: The Unreliability Principle, Mentally Ill Defendants, And The Death Penalty's Unraveling, Scott E. Sundby

Articles

No abstract provided.

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele E. Gilman

All Faculty Scholarship

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

Defeating A Wolf Clad As A Wolf: Formalism And Functionalism In Separation-Of-Powers Suits Against The Consumer Financial Protection Bureau, Lee A. Deneen

Georgia Law Review

In 2010, the Court decided Free Enterprise Fund, engaging in a substantially formalist analysis of the President's removal power. That same year, Congress authorized creation of the Consumer Financial Protection Bureau, a federal agency with significant regulatory and enforcement power over the consumer finance industry. Within three years of that legislation, two lawsuits have challenged the CFPB's structure. This Note evaluates the arguments of the CFPB's opponents against the backdrop of Free Enterprise Fund and the Roberts Court's other formalist decisions. Although one might expect complaints against the CFPB to be lodged solely in formalist terms, the CFPB's opponents have …

The Dangers Of Press Clause Dicta, Ronnell A. Jones

Georgia Law Review

If an attorney, scholar, or citizen opened the 448th volume of the U.S. Reports to page 573, she would find herself midway through a case captioned Richmond Newspapers, Inc. v. Virginia. Context would make clear that the case was brought by a newspaper that wished to report on a criminal trial but was precluded from doing so when the trial judge closed the proceedings. The tenor of the analysis would foreshadow that the newspaper was on its way to a 7-1 victory and a holding that gave it the access it sought to the judicial proceeding. And the tone of …

Citizen-Critics, Citizen Journalists, And The Perils Of Defining The Press, William E. Lee

Georgia Law Review

Media lawyers frequently describe New York Times Co. v. Sullivan as a great win for the press. Certainly the Court's ruling saved the New York Times from financial ruin. However, four Alabama ministers active in the Southern Christian Leadership Conference (SCLC), Ralph D. Abernathy, Joseph E. Lowery, Fred L. Shuttlesworth, and S.S. Seay Sr., were also targeted by Sullivan as defendants. Despite testimony that the ministers had not authorized the use of their names in the advertisement, "Heed Their Rising Voices," and learned of the ad only when Sullivan asked them for a retraction, the jury found each liable for …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine M. Crocker

Georgia Law Review

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of "ripeness" requiring most Fifth Amendment regulatory- takings claimants to seek 'just compensation" in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora's box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs …

Finality And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

New science and evolving societal views have led commentators to question the doctrine of finality. This parallels commentators’ embrace of rehabilitation during the middle of the last century. Today, casting off the strictures of finality and embracing rehabilitation are considered complementary positions, but finality has historically been understood as promoting rehabilitation. This shift stems from our changing understandings of rehabilitation. Rehabilitation focuses on offender change — on whether an offender is a final product or, rather, whether he is capable of transformation. Offender change, though, could be either change in character or change in behavior, or a combination of these …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Not Without Political Power: Gays And Lesbians, Equal Protection And The Suspect Class Doctrine, Darren L. Hutchinson

Faculty Articles

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Keeping Up With New Legal Titles, Tina M. Brooks

Law Faculty Scholarly Articles

In this book review, Tina M. Brooks discusses The Puzzle of Unanimity: Consensus on the United States Supreme Court by Pamela C. Corley, Amy Steigerwalt, and Artemus Ward.

The Philosophy And Jurisprudence Of Chief Justice Roberts, Kiel Brennan-Marquez

Utah Law Review

A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency …

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele Gilman

Utah Law Review

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

How The Supreme Court Uses The Certiorari Process In The Ninth Circuit To Further Its Pro-Business Agenda: A Strange Pas De Deux With An Unfortunate Coda, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court's certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson

University of Michigan Journal of Law Reform

Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …

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 …

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, …

Viva Conditional Federal Spending!, Samuel R. Bagenstos

Articles

From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to …