Supreme Court of the United States Commons^™

What A Load Of Hope: The Post-Racial Mixtape, Jeremiah Chin

Articles

This Comment analyzes how Supreme Court decisions and recent legislation have used the language of post-racialism to re-center whiteness through the law. Rather than using explicit racist language, the post-racial project exploits the language of historical antiracist efforts to negate experiences with discrimination while continuing a hostile environment for racial groups and promoting white supremacy in the United States.

Beginning with Supreme Court decisions on affirmative action, in Regents of the University of California v. Bakke and Grutter v. Bollinger, and school desegregation in Parents Involved in Community Schools v. Seattle School District No. 1, this Comment analyzes …

Review Of Labor And Employment Law Decisions From The United States Supreme Court's 2010-11 Term, Eric Schnapper

Articles

In the 2010-11 term, the U.S. Supreme Court decided nine significant labor and employment cases. Although some of these cases affected only the construction of a specific statute or constitutional provision, several of them addressed issues likely to affect the interpretation and implementation of a wide range of federal employment laws. Most of these decisions, rather than definitively resolving a question, raise a range of new issues likely to be litigated for years to come. Thus, for practitioners and academics alike, recognizing the new questions that have now been raised is at least as important as understanding what matters the …

Constraining Certiorari Using Administrative Law Principles, Kathryn A. Watts

Articles

The U.S. Supreme Court—thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988—currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process.

Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, …

The Short-Sighted Attack On Patent Eligibility Of Healthcare Related Patents, Gregory Dolin

All Faculty Scholarship

On March 20, 2012, the Supreme Court of the United States unanimously decided the case of Mayo Collaborative Svc. v. Prometheus Labs. At issue was a patent, held by Prometheus that taught doctors how to adjust the amount of thiopurine (a drug used for treatment of a variety of autoimmune diseases) administered to a patient. In an opinion by Justice Breyer, the Court held Prometheus’s invention to not be patent eligible and invalidated the patent. Though I believe that the reasoning the Court employed was erroneous and highly problematic (of which more later), the decision could have been viewed as …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

Publications

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Reverse Abstention, Samuel P. Jordan

All Faculty Scholarship

State courts decide claims based on federal or sister-state law every day. Although the applicable constitutional provisions are different, there are significant similarities in the way the Supreme Court conceptualizes the constraints on how those claims must be treated. One project of this Article is to chart those similarities, providing a unified account of the Court’s approach to judicial federalism. The larger project, however, is not to describe the Court’s approach, but to replace it. The current emphasis on discrimination and interference imposes burdensome and unwarranted obligations on state courts. A more flexible approach to judicial federalism is needed, and …

State Amici, Collective Action, And The Development Of Federalism Doctrine, Michael E. Solimine

Georgia Law Review

State attorneys general (SAGs) have been individually
and collectively active on many legal and regulatory fronts
in recent years. One of those activities has been the filing
of amicus curiae briefs in the United States Supreme

Court, especially in cases impacting the states and
federalism doctrine. Frequently SAGs will join in one
amicus brief, and briefs signed by forty or more states are
not uncommon. This phenomenon has been the subject of
attention by legal scholars and political scientists, but the
normative jurisprudential significance of such briefs has
not. In their opinions, the Justices vary in how much legal
weight, …

American Electricpower V. Connecticut: Disaster Averted By Displacing The Federal Common Law Of Nuisance, Damian M. Brychey

Georgia Law Review

Historically, the federal common law of nuisance has
provided a means to regulate interstate pollution. With
the passing of legislative acts such as the Clean Water Act
and the Clean Air Act, however, traditional federal
nuisance lawsuits were displaced. The continued viability
of the federal common law of nuisance to regulate
pollution, specifically greenhouse gases, was brought to
the forefront of American jurisprudence in American
Electric Power Co. v. Connecticut. There, the Supreme
Court held that the Clean Air Act and the EPA actions the
Act authorizes displace any federal common law right to
seek abatement of greenhouse gases-reversing the …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

Split Definitive, Lawrence Baum, Neal Devins

Popular Media

For the first time in a century, the Supreme Court is divided solely by political party.

Separation Of Powers And The Middle Way, Jack M. Beermann

Shorter Faculty Works

Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding …

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Faculty Publications

Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Capturing The Judiciary: Carhart And The Undue Burden Standard, Khiara Bridges

Faculty Scholarship

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding …

J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson

Michigan Law Review First Impressions

This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …

Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.

University of Michigan Journal of Law Reform

Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Michigan Journal of Race and Law

Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a "short and plain" statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their "judicial experience and common sense." Courts apply this standard …

Section 2: Structure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: United States V. Jones, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

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

Supreme Court Preview

No abstract provided.

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

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

Supreme Court Preview

No abstract provided.

Section 3: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

Playing Well With Others -- But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi Member Court, William D. Araiza

Faculty Scholarship

No abstract provided.

Protecting Anonymous Expression: The Internet's Role In Washington State's Disclosure Laws And The Direct Democracy Process, Karen Cullinane

University of Michigan Journal of Law Reform

This Note proposes that the Washington State Legislature amend its Public Records Act to exempt from public disclosure personal information legally required to be disclosed by signers of referendum petitions. This Note also proposes that the Washington State Legislature designate an electronic system, to be detailed in its election law, by which referendum petitions can be checked for fraud without violating the right to anonymous expression protected by the First Amendment. Part I describes Washington State's referendum process and the path of Doe v. Reed, the case animating the reform presented in this Note. Part II illustrates how the rise …

Emphasizing Substance: Making The Case For A Shift In Political Speech Jurisprudence, Anastasia N. Niedrich

University of Michigan Journal of Law Reform

Political speech is vital to a functioning democracy and is highly protected. That much is hardly disputed. What courts, legal scholars, and those seeking to convey a political message do dispute is how political speech should be identified and protected, and who should decide what constitutes political speech. This Note looks at the history of political speech doctrine and critiques two intent-based approaches that have been proposed by First Amendment scholars to define political speech. This Note proposes a solution to many problems inherent in defining, identifying, and protecting political speech within intent-based frameworks, arguing that focusing on intent creates …