Federalism, Liberty, And Equality In United States V. Windsor,
2013
Duke Law School
Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel
Faculty Scholarship
This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model,
2013
University of Michigan Law School
The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld
Articles
On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff,
2013
University of Michigan Law School
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi
Articles
In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker,
2013
University of Michigan Law School
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi
Articles
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …
Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms,
2013
University of Michigan Law School
Prometheus Rebound: Diagnostics, Nature, And Mathematical Algorithms, Rebecca S. Eisenberg
Articles
The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions. First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult precedents concerning the …
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics,
2013
University of Michigan Law School
Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger
Articles
The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan,
2013
University of Michigan Law School
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
Articles
The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures,
2013
University of Michigan Law School
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Articles
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …
The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg,
2013
University of Michigan Law School
The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer
Articles
First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …
Shelby County V. Holder: Why Section 2 Matters,
2013
University of Michigan Law School
Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz
Articles
Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.
Grutter's Denouement: Three Templates From The Roberts Court,
2013
University of Michigan Law School
Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz
Articles
Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …
South Carolina's 'Evolutionary Process',
2013
University of Michigan Law School
South Carolina's 'Evolutionary Process', Ellen D. Katz
Articles
When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …
A Cure Worse Than The Disease?,
2013
University of Michigan Law School
A Cure Worse Than The Disease?, Ellen D. Katz
Articles
The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.
What Was Wrong With The Record?,
2013
University of Michigan Law School
What Was Wrong With The Record?, Ellen D. Katz
Articles
Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.
Antitrust And The Judicial Virtues,
2013
University of Michigan Law School
Antitrust And The Judicial Virtues, Daniel A. Crane
Articles
Although commentators frequently debate how judges should decide antitrust cases substantively, little attention has been paid to theories of judicial virtue in antitrust decision making. This essay considers four pairings of virtues: (1) striving for substantive purity versus conceding to institutional realism; (2) incrementalism versus generalism; (3) presenting a unified face versus candidly conceding differences among judges on an appellate panel; and (4) adhering strictly to stare decisis versus freely updating precedents to reflect evolving economic learning or conditions. While recognizing the complexities that sometimes pull judges in the opposite direction, this Article gives the nod to institutional realism, incrementalism, …
Real Judicial Restraint,
2013
The Catholic University of America, Columbus School of Law
Real Judicial Restraint, Joel Alicea
Scholarly Articles
The conservative legal movement has long stood simultaneously for originalism and judicial restraint. But in the past few years, the tension between a commitment to interpreting the Constitution as its authors intended and deferring to the will of legislators and the executive has become painfully clear. Does originalism demand judicial restraint, or is the Constitution undermined by such restraint?
Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits,
2013
University of Maryland Francis King Carey School of Law
Logic, Not Evidence, Supports A Change In Expert Testimony Standards: Why Evidentiary Standards Promulgated By The Supreme Court For Scientific Expert Testimony Are Inappropriate And Inefficient When Applied In Patent Infringement Suits, Claire R. Rollor
Journal of Business & Technology Law
No abstract provided.
Ip Injury And The Institutions Of Patent Law,
2013
Boston University School of Law
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Faculty Scholarship
This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act,
2013
Duke Law School
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthomy J. Scricia
Faculty Scholarship
No abstract provided.
In Praise Of Judge Fletcher-And Of General Standing Principles,
2013
Duke Law School
In Praise Of Judge Fletcher-And Of General Standing Principles, Ernest A. Young
Faculty Scholarship
No abstract provided.
