Supreme Court of the United States Commons^™

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

Pharma's Nonobvious Problem, Rebecca S. Eisenberg

Articles

This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …

Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein

All Faculty Scholarship

In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting …

Congressional Responses To Judicial Decisions, Neal Devins

Faculty Publications

No abstract provided.

God, Gaia, The Taxpayer, And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court considered standing in two high-profile cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. Both were 5-4 decisions in which the Court decided along traditional, ideological lines, and both decisions may provide an indication of the future direction of the Supreme Court.

In Hein, a five-Justice majority denied taxpayer standing to challenge the Bush Administration's so-called "faith-based initiatives" as a violation of the First Amendment's Establishment Clause. In Massachusetts, the Court broke new ground as it took several steps in a decidedly "liberal" direction. The five Justice …

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

The Measure Of Government Speech: Identifying Expression's Source, Helen Norton

Publications

States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content.

In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating …

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Publications

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Faculty Publications

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive …

Abbott Labs V. Gardner, 387 U.S. 136 (1967), Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Subject Matter Jurisdiction, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Formalism And Judicial Supremacy In Federal Indian Law, Alex Tallchief Skibine

American Indian Law Review

No abstract provided.

Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi

Michigan Law Review

This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …

Due Process Traditionalism, Cass R. Sunstein

Michigan Law Review

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Can Congress Authorize The Opponents Of Self-Financed Candidates To Receive Extra-Large Contributions?, Richard Briffault

Faculty Scholarship

Is the so-called Millionaires’ Amendment, which permits federal candidates who are running against self-funded opponents to receive contributions significantly above the standard federal statutory ceiling constitutional?

Federal law caps contributions to federal candidates, but the Supreme Court has ruled that limits on how much money a candidate can contribute to his or her own campaign are unconstitutional. This case tests the 2002 Millionaires’ Amendment, which enables candidates for Congress running against self-financing opponents to obtain contributions well above the ordinary statutory ceiling and also imposes additional reporting requirements on self-funding candidates.

Introduction To Sandra Day O'Connor, George A. Bermann

Faculty Scholarship

There are many, many reasons to honor Justice Sandra Day O'Connor-and during the course of her brief but rich stay with us here at Columbia Law School, we have touched on only some of those many reasons. There remains this afternoon one more occasion to honor Justice O'Connor-an honor that has a very special resonance at this law school. It is the conferral of the Wolfgang Friedmann Memorial Award by the Columbia Journal of Transnational Law, a recognition of contributions to international law that is deeply meaningful not only at Columbia Law School, but in international law circles generally.

Frozen In Time: The State Action Doctrine's Application To Amateur Sports, Dionne L. Koller

All Faculty Scholarship

The state action doctrine has as its central goal the preservation of liberty by limiting the intrusion of the government into the "private" sphere. It achieves this by applying the Constitution only to government, and not private, action. Traditionally, amateur sports regulators such as the National Collegiate Athletic Association (NCAA) and the United States Olympic Committee (USOC) have been viewed by courts as private. As a result, this article explains that courts generally give great deference to amateur sports organizations such as the NCAA and USOC to regulate sports with little judicial interference, including in the area of constitutional litigation. …

The Possibility Of A Secular First Amendment, Chad Flanders

All Faculty Scholarship

In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …

The Story Of The Steel Seizure Case, Patricia L. Bellia

Book Chapters

In 1952, during the Korean War, President Truman seized control of American steel mills to prevent a strike that threatened the war effort. This action, prompted by a labor dispute between steelworkers and operators, led to a landmark Supreme Court case, Youngstown Sheet & Tube Co. v. Sawyer. The Court ultimately ruled that the President lacked the authority to seize the steel mills without explicit congressional authorization, establishing limits on presidential power.

Second Class Delivery: The Elimination Of Birthright Citizenship As A Repeal Of "The Pursuit Of Happiness", Sara C. Barnhart

Georgia Law Review

In recent years, immigration has been at the forefront of political debate in the United States. In response to concerns over undocumented immigrants, some members of Congress have proposed the elimination of birthright citizenship. Eliminating birthright citizenship means that citizenship at birth would be based on the citizenship of one's parents rather than one's birth in U.S. territory. This Note demonstrates the historical nature of this U.S. immigration controversy by tracing similar movements throughout history. It documents the roots of the common law doctrine of birthright citizenship, followed by a discussion of the protection of citizenship status the Fourteenth Amendment's …

A New Era Of Federal Sentencing: The Guidelines Provide District Court Judges A Cloak, But Is Gall Their Dagger?, Anna E. Papa

Georgia Law Review

Federal district court judges today have a level of sentencing discretion that has been unknown since the adoption of the United States Sentencing Guidelines. This Note reviews the history of the Guidelines and outlines the problems that have resulted from the Supreme Court's decisions in Booker, Rita, and Gall This Note argues that the confusion may be clarified by giving effect to the text of 18 U.S.C. §3553(a), which requires that federal district court judges impose sentences that are sufficient, but not greater than necessary, and requires them to examine all the factors provided in the statute. The court's recent …

Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon

Faculty Scholarship

A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,² a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held …

Brief Of Amici Curiae Law Professors In Support Of Petitioner Goss International Corp., Salil Kumar Mehra, Jay Tidmarsh

Court Briefs

No. 07-618
Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd.

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

From the Introduction and Summary of Argument

This case presents issues of jurisdiction, equity, and international comity that require this Court’s resolution. As we understand the facts, in 2003 the petitioner, Goss International, obtained a judgment under the Antidumping Act of 1916, 15 U.S.C. § 72 (2000) (repealed 2004), against the respondents, which are a Japanese corporation and its wholly-owned American subsidiary. The consonance between the Antidumping Act and the obligations of the …

Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger

Michigan Law Review

State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in Pike …

The Common Law Genius Of The Warren Court, David A. Strauss

William & Mary Law Review

The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedure are firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. …