Supreme Court of the United States Commons^™

Tiresias And The Justices: Using Information Markets To Predict Supreme Court Decisions, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

(Excerpt)

In ancient Greek mythology, oracles and seers could foretell the actions of gods and kings. With these predictions, ordinary citizens could glimpse the future actions of their rulers, and the recipients treasured those insights.

Such knowledge may be more than myth. This Article explores the power of the information market, an economic instrument that allows groups of participants to merge their collective knowledge to make predictions. Specifically, we discuss the application of information markets to predicting Supreme Court decisions. The implications are significant: Supreme Court rulings determine issues critical to American politics and business, ranging from the Fifth Amendment …

Markets For Markets: Origins And Subjects Of Information Markets, Miriam A. Cherry, Robert L. Rogers

Faculty Publications

(Excerpt)

After the death of Pope John Paul II, a papal conclave convened to elect his successor. The media speculated that certain candidates were the "frontrunners" to watch. At the same time, pools formed on web sites to predict the outcome of the conclave, either for fun (using virtual money) or for profit. Throughout the days that the conclave met in April of 2005, trading continued, and ultimately the various markets predicted both that Cardinal Joseph Ratzinger would emerge as the next pope and that he would choose the name Benedict XVI. After the white smoke signifying a new pope …

Witnesses In The Confrontation Clause: Crawford V. Washington, Noah Webster, And Compulsory Process, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Tribute To Justice Antonin Scalia, Nadine Strossen

Articles & Chapters

No abstract provided.

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Faculty Scholarship

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz

Articles

LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …

Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar

Articles

June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

Last October, a group of distinguished tax experts from the European Union and the United States convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …

Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker

Articles

When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for the same …

Rewriting Shutts For Fun, Not To Profit, Edward H. Cooper

Articles

It has not been easy to reconcile contemporary class-action practice with traditional adversary procedure. For that matter, it is not easy to craft a unitary "class-action" procedure that serves well the many different purposes pursued by the many different species of class actions. The practice has flourished, but few would dare say it has really matured. Many problems remain.

We Really (For The Most Part) Mean It!, Richard D. Friedman

Articles

I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

But I Didn't Do Anything Wrong: Revisiting The Rights Of Non-Offending Parents In Child Protection Proceedings, Vivek Sankaran

Articles

Steven, a minor living with his mother, enjoyed a nurturing relationship with his father, Mark. He saw his father every weekend and looked forward to their time together. Mark looked for ways in which to stay involved in his child's life. Two days ago, the Department of Human Services (DHS) removed Steven from his mother's custody because, unbeknown to Mark, Stevens mother was selling drugs in the home. At the time of removal, the police did not inquire about the whereabouts of Stevens father; DHS immediately placed Steven in a foster home.

Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross

Articles

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

Publications

This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

The Virtues And Vices Of Sovereignty, Sarah Krakoff

Publications

American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …

The Too Easy Historical Assumptions Of Crawford V. Washington, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Gender Stereotyping: Expanding The Boundaries Of Title Vii: Proceedings Of The 2006 Annual Meeting, Association Of American Law Schools, Section On Employment Discrimination Law, Michelle A. Travis, Arthur S. Leonard, Joann Williams, Mirriam Cherry

Articles & Chapters

No abstract provided.

The ‘Rule Of Law’ And The Military Commission, Stephen Ellmann

Articles & Chapters

No abstract provided.

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

Coercion And Choice Under The Establishment Clause, Cynthia V. Ward

Faculty Publications

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

Publications

No abstract provided.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

Publications

No abstract provided.