Supreme Court of the United States Commons^™

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Foreword, Joel K. Goldstein

All Faculty Scholarship

Few cases in American history have engendered such controversy as has the Supreme Court’s decision in Roe v. Wade.1 Since its issuance in January 1973, scholars in various disciplines, as well as lay people, have subjected the decision to vigorous debate. That discussion continues in a host of fora, but not in the pages which follow in this volume.

The Incompatibility Principle, Harold H. Bruff

Publications

No abstract provided.

The Most Dangerous Justice Rides Into The Sunset, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice …

Federalism And Accountability, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that judicially-enforced limits on federal power enhance electoral accountability, a concept central to our democracy. If in the absence of federal regulation narrowly accountable state-based actors from a small number of states can …

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Faculty Publications

No abstract provided.

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

Publications

No abstract provided.

Who's Afraid Of Geneva Law?, Aya Gruber

Publications

According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …

A Perspective On Federal Corporation Law, Mark J. Loewenstein

Publications

No abstract provided.

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

Publications

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under § 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United …

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

Publications

This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …

Congress, The Supreme Court, And Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy By Placing Limits On Federal Court Jurisdiction, Neal Devins

Faculty Publications

No abstract provided.

The D'Oh! Of Popular Constitutionalism, Neal Devins

Michigan Law Review

This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen's decision-making model. In particular, by allowing the Court to invalidate laws for a host of "antidemocratic" reasons, Rosen's matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution's meaning …

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy Meyer

Faculty Scholarship

No abstract provided.

United States V. Atlantic Research: The Supreme Court Almost Gets It Right, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Is Capital Punishment Unconstitutional? And Even If We Think It Is, Should We Want The Supreme Court To So Rule?, Michael J. Perry

Georgia Law Review

Given that the Supreme Court of the United States, in protecting constitutionally entrenched human rights, exercises the power of judicial ultimacy, should the Court exercise the power deferentially? That is, should the Court defer to some degree to the judgment of the members of the legislative and/or executive branches of government whose law or policy is in question and who presumably have concluded that the law or policy does not violate any human right?

The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude-for her to …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel

Faculty Scholarship

In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.

This Article clarifies the …

Issue 1: Annual Survey 2006 Table Of Contents

University of Richmond Law Review

No abstract provided.

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …

Where Sexual Privacy Meets Public Morality: How Williams V. King Is Instructive For The Fourth Circuit In Applying Public Morality As A Legitimate State Interest After Lawrence V. Texas, Douglas E. Nauman

North Carolina Central Law Review

No abstract provided.

Trends In Protection For Informational Works Under Copyright Law During The 19th And 20th Centuries, Miriam Bitton

Michigan Telecommunications & Technology Law Review

The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment …

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …

The Temporal Dynamics Of Capable Of Substantial Noninfringing Uses, R. Anthony Reese

Michigan Telecommunications & Technology Law Review

The copyright issues raised by "dual-use" technologies--equipment that can be used both in ways that infringe copyright and in ways that do not--first gained prominence in connection with the litigation over videocassette recorders that culminated in the Supreme Court's decision in Sony in 1984. Copyright owners had asserted that Sony's manufacture and distribution of VCRs rendered it liable for copyright infringement committed by customers using their Sony VCRs. The Supreme Court in Sony concluded that copyright law did not impose such secondary liability where the device in question was capable of substantial noninfringing uses (and that the VCR was such …

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …