Supreme Court of the United States Commons^™

Strict In Theory, Loopy In Fact, Nathaniel Persily

Michigan Law Review First Impressions

Most Supreme Court-watchers find the decision in LULAC v. Perry notable for the ground it breaks concerning Section 2 of the Voting Rights Act and the ground it refuses to break on the topic of partisan gerrymandering. I tend to think the Court’s patchwork application of Section 2 to strike down a district on vote dilution grounds is not all that dramatic, nor is its resolution of the partisan gerrymandering claims all that surprising. The truly unprecedented development in the case for me was Justice Scalia’s vote to uphold what he considered a racial classification under the Equal Protection Clause, …

The Story Of Crawford, Richard D. Friedman

Book Chapters

Michael Crawford had been charged with assault. At his trial, the prosecution offered a statement made in the police station on the night of the incident by Crawford's wife Sylvia, who did not testify at trial. He objected, in part on the ground that this violated his right under the Confrontation Clause. The trial court nevertheless admitted the statement, and Crawford was convicted. The Washington Supreme Court ultimately affirmed the judgment. In rejecting the Confrontation Clause challenge, that court purported to apply the then governing doctrine of Ohio v. Roberts, under which the Clause posed no obstacle to admissibility if …

The Story Of Sony V. Universal Studios: Mary Poppins Meets The Boston Strangler., Jessica Litman

Book Chapters

Sony v. Universal Studios may be the most famous of all copyright cases. People who know nothing about copyright know that the Sony-Betamax case held that home videotaping of television programs is fair use. Paradoxically, although the Supreme Court granted certiorari in the case to decide whether the copyright law permitted consumers to engage in private home copying of television programs, the majority ended up crafting its analysis to avoid answering that question definitively. Instead, it ruled that even if consumers sometimes violated the copyright law when they taped television programs off the air, that violation did not make the …

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, 11 Mich. J. Race & L. 477 (2006), Cecil J. Hunt Ii

UIC Law Open Access Faculty Scholarship

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites …

Snoop Dogs: An Analysis Of Narcotics Canine Sniffs Of Storage Units Under The Fourth Amendment, Eugene D. Bryant

Georgia Law Review

A recent development in the nation's war on drugs is the increased use of narcotics canines to indiscriminately search storage facilities. Although the Fourth Amendment protects persons from unreasonable searches and seizures, the Supreme Court of the United States in U.S. v. Place deemed a canine sniff to be sui generis and not a "search"subject to analysis under the Fourth Amendment. With its decision in Illinois v. Caballes, the Court extended this analysis to canine sniffs outside of vehicles. Various state courts, in order to better protect the rights of state citizens, have rejected the Supreme Court's sui generis analysis …

Contents

University of Richmond Law Review

No abstract provided.

Rebus Sic Stantibus: Notification Of Consular Rights After Medellin, Aaron A. Ostrovsky, Brandon E. Reavis

Michigan Journal of International Law

This Comment examines, through principles of public international law and U.S. jurisprudence, the relationship between U.S. courts and the ICJ to determine if the former are indeed bound by the latter's decisions, proprio motu, or if instead some Executive action is required to make the decisions binding on the judiciary. Part of this examination will entail a discussion of the potential for dialogue between the ICJ and U.S. courts to "pierce the veil of sovereignty" that traditionally conceals the inner workings of sovereign states from the scrutiny of international tribunals. Based on this assessment, the Comment then addresses how …

Has The Supreme Court Incorrectly Expanded § 271(E)(1) To Risk A Regulatory Taking?, 5 J. Marshall Rev. Intell. Prop. L. 216 (2006), Tara Stuart

UIC Review of Intellectual Property Law

The U.S.S.C. expanded the scope of the Hatch-Waxman Act’s safe harbor provision in Merck III to include protection for infringing use of any type of invention as long as a researcher intended to perform research reasonably relevant to FDA approval. This broad interpretation is inconsistent with the legislative intent of the Hatch-Waxman Act, and the policies of the U.S. patent system. Many patent owners may unnecessarily experience such a reduction in their property rights as to constitute a regulatory taking. The proposed narrow interpretation would rectify the constitutional problems and inconsistencies in infringement exemptions. Section 271(e)(1) should apply only to …

Recent Developments In Copyright Law: Selected U.S. Supreme Court, Court Of Appeals, And District Court Opinions Between February 1, 2005 And May 1, 2006, 6 J. Marshall Rev. Intell. Prop. L. 40 (2006), Tyler T. Ochoa

UIC Review of Intellectual Property Law

This article highlights nine selected U.S. copyright law decisions handed down between February 1, 2005 and May 1, 2006. Two of the decisions concern peer-to-peer file sharing, including the U.S. Supreme Court’s landmark decision in MGM v. Grokster. One of the decisions questions the applicability of the idea/expression dichotomy to works of visual art. Two of the decisions discuss ownership of the renewal rights in a work under the 1909 Act when the author is deceased. One of the decisions interprets the requirement that an author register his or her work before filing an infringement action. Two of the decisions …

Against Idols: The Court As A Symbol-Making Or Rhetorical Institution, Marie Failinger

Faculty Scholarship

Symbolic politics can be quite powerful. This article pursues the question of how the Supreme Court signifies itself, how it discovers and enacts the metaphors from which it will play its part in the American political drama aimed at containing some of the nightmares of human existence, while affirming and encouraging the possibilities for human flourishing. Embedded in this inquiry is the question of how the Court can signify itself while still preserving the truth-telling and humility necessary to legitimize Court decisions.

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

Faculty Scholarship

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instructions on how burdens are allocated between the party seeking and the party opposing summary judgment. However, Celotex failed to clarify …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

Confrontation Clause And Testimonial Evidence: After Two Supreme Court Decisions, Standard Remains Unclear, Alan Raphael Phd., J.D.

Public Interest Law Reporter

No abstract provided.

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

Tribute, Rehnquist, Innsbruck, And St. Mary’S University, Vincent R. Johnson

Faculty Articles

William H. Rehnquist served as the seventeenth Chief Justice of the United States. During this time, the Chief Justice taught for St. Mary’s University School of Law over four summers, two weeks each July in 1991, 1994, 1998, and 2000. Chief Justice Rehnquist lectured on the Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. Chief Justice Rehnquist felt welcome in Innsbruck, and had earned the St. Mary’s faculty’s fond regard and the students’ admiration.

The memories of the summers spent in Innsbruck with Chief Justice Rehnquist are shared …

In The Wake Of Republic Of Austria V. Altmann: The Current Status Of Foreign Sovereign Immunity In United States Courts, David P. Vandenberg

University of Colorado Law Review

In Republic of Austria v. Altmann, the United States Supreme Court held that conduct predating the passage of the Foreign Sovereign Immunity Act of 1976 could nonetheless be grounds for a claim under the Act. This article begins with a historical survey of foreign sovereign immunity in the U.S. legal system. However, it is foremost an analysis and critique of the Supreme Court's opinion in Altmann. It argues that in the wake of the Court's decision, the floodgates will not open to a rash of foreign sovereign immunity claims based on long-ago conduct because other factors-both legal and practical will …

Evolving Understandings Of American Federalism: Some Shifting Parameters, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Effective Alternatives To Causes Of Action Barred By The Eleventh Amendment, Jesse H. Choper, John C. Yoo

NYLS Law Review

No abstract provided.

Reconceptualizing Federalism, Erwin Chemerinsky

NYLS Law Review

No abstract provided.

Supreme Court Affirms Oregon Physician Assisted Suicide Statute, Adam Braun

Public Interest Law Reporter

No abstract provided.

Police Can Be More Aggressive When Gathering Evidence, Court Says, Tim Kerrigan

Public Interest Law Reporter

No abstract provided.

Sanchez-Llamas V. Oregon And Article 36 Of The Vienna Convention On Consular Relations: The Supreme Court, The Right To Consul, And Remediation, Mark J. Kadish, Charles C. Olson

Michigan Journal of International Law

This Article analyzes the Sanchez-Llamas decision and attempts to ascertain its impact on future Article 36 litigation.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

Publications

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

"Particular Intentions": The Hillmon Case And The Supreme Court, Marianne Wesson

Publications

The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed identity. The author's investigations into newspaper …

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

No abstract provided.

Introduction: A Tale Of (At Least) Two Federalisms, Denise C. Morgan

NYLS Law Review

No abstract provided.

The Future Of Federalism? Pierce County V. Guillen As A Case Study, Lynn A. Baker

NYLS Law Review

No abstract provided.

The Marriage Protection Act: A Lesson In Congressional Over-Reaching, Sarah Kroll-Rosenbaum

NYLS Law Review

No abstract provided.

Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic

Michigan Law Review

This Note argues that the Supreme Court's recent jurisprudence regarding morals legislation mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with …