Supreme Court of the United States Commons^™

Legislating Virtue: How Segregationists Disguised Racial Discrimination As Moral Reform Following Brown V. Board Of Education, Anders Walker

All Faculty Scholarship

Shortly after the Supreme Court of the United States invalidated school segregation in Brown v. Board of Education,[1] Mississippi Circuit Judge Tom P. Brady [2] delivered a speech to a chapter of the Sons of the American Revolution on the decision’s consequences. Brady’s speech, later published and popularized throughout the South,[3] declared that the ruling’s ultimate goal was not educational equality, but racial amalgamation:[4]

Let’s get one thing unmistakably clear, the leaders of the three million block-voting negroes of the North and East and of California, together with segments of the Communist-front organizations of our population, have set as their …

Foreward (Symposium: Critical Perspectives On Megan’S Law: Protection Vs. Privacy), Nadine Strossen

Articles & Chapters

No abstract provided.

It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Race, Redistricting And A Republican Poll Tax: The Supreme Court's Voting Rights Decisions Of The 1995-96 Term, Frank Parker

Touro Law Review

No abstract provided.

Discrimination Cases, Eileen Kaufman

Touro Law Review

No abstract provided.

Employees: Show Us Your Paycheck, Dina Mastellone

Touro Law Review

No abstract provided.

William J. Brennan, Jr., Peter L. Strauss

Faculty Scholarship

When I was privileged to be Justice Brennan's law clerk, he had not yet earned even from his own law school the affection and respect that have prompted the editors of this law review, and doubtless many others, to offer an issue in dedication to him. In the three decades following, he made his claim to both unmistakably clear. His extraordinary tenure on the Court produced 1360 opinions, spread over the last 146 of the Court's first 497 volumes. Nearly a decade after his retirement, it is probably still the case that more opinions in constitutional law teaching materials carry …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin

Vanderbilt Law School Faculty Publications

If the assertions that this essay makes about the Court's "unfair" prosecution-orientation withstand scrutiny," two further conclusions might follow. First, the highest court in the country is so fixated on ensuring that a particular side wins that it is willing with some frequency to sacrifice the most basic attribute of any court worthy of the name-the appearance of fairness. This conclusion is a much more fundamental challenge to the Court's integrity than is the simple acknowledgement that a majority of the Justices are biased in favor of the government. Second, to the extent the Court's unfairness becomes common knowledge, its …

1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla

William & Mary Bill of Rights Journal

No abstract provided.

A More Sensible Approach To Regulating Independent Expenditures: Defending The Constitutionality Of The Fed's New Express Advocacy Standard, Michael D. Leffel

Michigan Law Review

Campaign finance reformers argue that the "unholy alliance of private money and public elections" has created "a crisis of confidence in our elected officials." The now-deceased campaign reform advocate Philip M. Stem summed up the role of money in campaigns this way: "[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory." One form of "money-power" in elections that received a great deal of attention in the last election cycle was "independent expenditures." Independent expenditures are funds spent by interested individuals or groups - usually in the form of television or radio advertisements …

The Constitution And Racial Preference In Law School Admissions, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …

Section 6: Voting Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Profiles Of The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 4: Business, Commerce, Property, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 2: Moot Court, Clinton V. Jones, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Three-Judge District Court In Voting Rights Litigation, Michael E. Solimine

University of Michigan Journal of Law Reform

In recent Terms the Supreme Court has heard numerous appeals from the decisions of three-judge district courts in controversial Voting Rights Act cases as well as in challenges to congressional districts designed allegedly to facilitate the election of members of minority groups. Although the cases themselves have been followed closely, the institution of the three-judge district court itself has received relatively little attention, even though Congress passed legislation in 1976 that restricted the three-judge court's jurisdiction to reapportionment and certain Voting Rights Act cases. In this Article, Professor Solimine argues that numerous problems attend the formation and operation of such …

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause …

Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.

Michigan Law Review

As I first discovered as a law student in Professor Amar's classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar's legal analysis, even when he is attacking one's own arguments. So my pleasure at reading Professor Amar's analysis of the Court's decision in Romer v. Evans was only partly dampened by his disapproval of the respondents' brief that I and other plaintiffs' counsel filed with the Court. According to Amar, this respondents' brief provided the Court with "so little help" that it had to rely on an entirely different and much …

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker

Michigan Law Review

To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.

The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward …

Escaping The World Of I Know It When I See It: A New Test For Software Patent Ability, Brooke Schumm Iii

Michigan Telecommunications & Technology Law Review

The major thesis presented in this article is a focused standard of software patentability, in particular for pure computational methods or algorithms directed to the manipulation of numbers operating on a computer. The general philosophy is to compel inventors to narrow their claims to an algorithm expressed in terms of its utility and then to require that the particular utility or functionality be expressed in the claim as a limit on the claim, thus precluding the patent monopoly from being overbroad. As a corollary, any person is free to use or perhaps to patent the algorithm for a different utility …