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Full-Text Articles in Supreme Court of the United States

Another Road To Liability Is Paved With Good Intentions: Observations On The Supreme Court's Latest Word On The Disparate Impact Theory Of Discrimination, Matthew J. Gilley, Antwoine L. Edwards Apr 2006

Another Road To Liability Is Paved With Good Intentions: Observations On The Supreme Court's Latest Word On The Disparate Impact Theory Of Discrimination, Matthew J. Gilley, Antwoine L. Edwards

North Carolina Central Law Review

No abstract provided.

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Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer Apr 2006

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

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Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman Mar 2006

Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman

Vanderbilt Law Review

"One person, one vote" sounds like a simple mathematical equation. Actually, it isn't quite that easy, but over the last forty years, the Supreme Court has distilled a fairly stable and predictable test for resolving the basic issue of equal representation: how much population difference between districts is permissible? In one area of representation, however, the Court has gotten the math wrong. In its only opinion on the decennial apportionment of Congress, the 1992 case U.S. Department of Commerce v. Montana, the Court punted. Rather than apply its well-established test from the districting cases, the Court deferred to Congress on …

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"There Is Only One Equal Protection Clause": An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming Mar 2006

"There Is Only One Equal Protection Clause": An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming

Faculty Scholarship

"There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases."1 These words open Justice John Paul Stevens's famous concurring opinion in Craig v. Boren.2 That was the first case in which the U.S. Supreme Court applied "intermediate" scrutiny to gender-based classifications and thus carved out a third tier of equal protection analysis between strict scrutiny and deferential rational basis scrutiny. Craig was decided in 1976, at the beginning of Justice Stevens's long and distinguished …

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Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint Jan 2006

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.

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Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jan 2006

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

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Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy Jan 2006

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …

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Re-Embodying Law, Steven L. Winter Jan 2006

Re-Embodying Law, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

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The Right To Say No To Discrimination: A Commentary On Rumsfeld V. Fair, Zachary Wolfe Jan 2006

The Right To Say No To Discrimination: A Commentary On Rumsfeld V. Fair, Zachary Wolfe

The Modern American

No abstract provided.

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In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano Jan 2006

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

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Exploring The Myths About The Ninth Circuit, Stephen Wermiel Jan 2006

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen Jan 2006

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

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The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox Jan 2006

The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox

Michigan Law Review First Impressions

In our celebrity-conscious culture, the media serve as arbiters of fame. The editors of Us Weekly and People wield significant influence over public recognition of celebrities. Since the Federal Trademark Dilution Act (“FTDA”) amended the Lanham Act in 1995, federal courts have adopted similar roles as arbiters of fame, determining which trademarks are sufficiently famous to receive federal protection against dilution. Recent changes to the Lanham Act, however, reserve the availability of dilution actions to “A-list” marks. These changes fulfill the objectives of trademark law while achieving Congress’s intent in enacting the FTDA.

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Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman Jan 2006

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

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Self-Defeating Minimalism, Adam B. Cox Jan 2006

Self-Defeating Minimalism, Adam B. Cox

Michigan Law Review First Impressions

Everyone wants a piece of Tom DeLay. The former majority leader is under investigation and indictment, and even the Supreme Court threatened last Term to undo one of his signal achievements. In 2003, DeLay orchestrated a highly unusual mid-decade revision of Texas’s congressional map. The revised map was a boon to Republicans, shifting the Texas congressional delegation from 15 Republicans and 17 Democrats to 21 Republicans and 11 Democrats. The map was attacked as an unconstitutional partisan gerrymander and a violation of the Voting Rights Act. When the Supreme Court agreed to hear those challenges in LULAC v. Perry, many …

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The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall Jan 2006

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

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Cultural Compactness, Daniel R. Oritz Jan 2006

Cultural Compactness, Daniel R. Oritz

Michigan Law Review First Impressions

The Supreme Court’s opinions in LULAC v. Perry, the Texas redistricting case, confounded expectation. While many believed that the Court would develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but there is no law to govern them. In other words, the courthouse doors are open, but until some plaintiff advances a novel theory persuasive to five justices, no claims will succeed. On the other hand, few expected the Court to make any major changes to doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC …

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The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer Jan 2006

The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer

Michigan Law Review First Impressions

Some have argued that the changes to the Federal Trademark Dilution Act (the “FTDA”) embodied in the recently enacted Trademark Dilution Revision Act of 2006 (the “TDRA”) threaten to infringe upon the right to free speech. This is simply not the case. The FTDA has always protected First Amendment rights, and the TDRA clarifies and strengthens those protections. While the concept of dilution was introduced in 1927, there was no federal dilution law in the United States until 1995, when Congress passed the FTDA. Since then, various federal courts have reached different conclusions regarding issues such as: (1) what constituted …

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Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour Jan 2006

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

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A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess Jan 2006

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

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What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin Jan 2006

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

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"Framing Affirmative Action", Kimberlé W. Crenshaw Jan 2006

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

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What Is Dilution, Anyway?, Stacey L. Dogan Jan 2006

What Is Dilution, Anyway?, Stacey L. Dogan

Michigan Law Review First Impressions

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …

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Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis Jan 2006

Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis

Michigan Law Review First Impressions

Dilution looked to be a potent weapon when Congress introduced it as § 43(c) of the Lanham Act in 1995. Indeed, some observers feared that it would be too potent (and in some contexts, such as cybersquatting, it successfully augmented traditional causes of action). But a series of court decisions, culminating in the Supreme Court’s 2003 Moseley v. V Secret Catalogue opinion, weakened dilution protection so profoundly that what remained wasn’t of much consequence. Congress has recently sought to breathe new life into dilution law, enacting the Trademark Dilution Revision Act of 2006 (“TDRA”). Some might see this as a …

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Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien Jan 2006

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

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The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker Jan 2006

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

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Legitimizing Error, Rebecca E. Woodman Jan 2006

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

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This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman Jan 2006

This Way To The Egress And Other Reflections On Partisan Gerrymandering Claims In Light Of Lulac V. Perry, Bernard Grofman

Michigan Law Review First Impressions

After winning control of both houses of the legislature and the governorship, Texas Republicans eventually succeeded in redistricting Texas’s congressional seats in 2003, replacing a 2001 court-drawn plan. LULAC v. Perry reviewed a number of challenges to that second redistricting. The decision deals with a multiplicity of issues, including, most importantly, the standard for violations of Section 2 of the Voting Rights Act and the nature of tests for unconstitutional partisan gerrymandering. While there are some clear holdings in the case, several of them reflect different combinations of Justices in the majority and, since there are six different opinions, it …

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Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff Jan 2006

Anthony Kennedy's Blind Quest, Scot Powe, Steve Bickerstaff

Michigan Law Review First Impressions

League of United Latin American Citizens [LULAC] v. Perry embraced, in the context of partisan gerrymandering, Felix Frankfurter’s conclusion that the Supreme Court should not enter the political thicket of legislative apportionment. Two years earlier in Vieth v. Jubelirer, the Court split 4–1–4 on the justiciability of partisan gerrymandering. O’Conner and the three conservatives held it was nonjusticiable. Each of the four moderate liberals offered a test showing it was justiciable. Kennedy dissented from the conservatives while simultaneously rejecting each of the four tests offered. He announced he was waiting for a better test. When far superior tests were offered …

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Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault Jan 2006

Lulac On Partisan Gerrymandering: Some Clarity, More Uncertainty, Richard Briffault

Michigan Law Review First Impressions

In League of United Latin American Citizens (“LULAC”) v. Perry, the Supreme Court, for the second time in two years, agonized over partisan gerrymandering. LULAC’s rejection of a Democratic challenge to the Texas legislature’s mid-decade pro-Republican congressional redistricting resembles the Court’s 2004 dismissal of a Democratic gerrymandering suit against Pennsylvania’s pro-Republican congressional redistricting plan in Vieth v. Jubelirer. As in Vieth, the Justices wrangled over justiciability, the substantive standard for assessing the constitutionality of partisan gerrymandering claims, and the interplay of justiciability and constitutionality. As in Vieth, the Court was highly fragmented: Vieth produced five separate opinions, while LULAC took …

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