Supreme Court of the United States Commons^™

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Michigan Law Review

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on the giving and spending of money in connection with elections only when they serve to avoid corruption or the appearance of corruption. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides …

Collective Action Federalism And Its Discontents, Neil S. Siegel

Faculty Scholarship

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

In this Essay, I offer a few thoughts in response to Jeffrey Rosen's contribution to this symposium on Jack Balkin's "Living Originalism". I will first focus on what he writes about the "new textualism." I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity.

If the abortion right is ultra vires because a lack of decisive warrant in text, structure, and history trumps mediating equality principles and legal …

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Standing's Expected Value, Jonathan Remy Nash

Michigan Law Review

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …

Issue 4: Table Of Contents

University of Richmond Law Review

No abstract provided.

Fifty Years Before Brady, Colin Starger

All Faculty Scholarship

In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s …

The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove

Faculty Publications

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

Brief Of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court granted certiorari in Hill v. Colorado “[b]ecause of the importance of the case.” 530 U.S. 703, 714 (2000). The Court should grant certiorari in this case because of the importance of placing limits on Hill.

The Court does not need to overrule Hill to contain the damage wrought by the First Circuit’s expansion of it. But the Court should contain Hill and thereby prevent further erosion of …

The Supreme Court And Celebrity Culture, Richard A. Posner

Chicago-Kent Law Review

No abstract provided.

Claiming Neutrality And Confessing Subjectivity In Supreme Court Confirmation Hearings, Carolyn Shapiro

Chicago-Kent Law Review

Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from …

Opinion Announcements, Tony Mauro

Chicago-Kent Law Review

When the Supreme Court handed down its landmark decision on the fate of the Affordable Care Act on June 28, 2012, several news organizations rushed to report, incorrectly, that the court had overturned the law. Those making the error did not wait for Chief Justice John Roberts Jr. to complete his twenty-minute announcement of the opinion from the bench. But anyone who had listened to the opinion announcement from start to finish would almost certainly have gotten it right.

This article examines the rarely discussed tradition of Supreme Court opinion announcements and their role in the interplay between the court, …

The Court And The Visual: Images And Artifacts In U.S. Supreme Court Opinions, Nancy S. Marder

Chicago-Kent Law Review

This Article contributes to the literature on the visual and the law by providing new empirical research on the use of images in U.S. Supreme Court opinions. In the trial court, the concern about using images is well known. In the highest court of the land, however, the use of images has been little studied and little discussed. This Article includes a comprehensive review of all images that appear in all opinions between 1997 and 2009. It also examines three paradigmatic images—maps, artifacts, and photos—and how they are used in three opinions. The use of maps and artifacts is the …

Deference To Authority As A Basis For Managing Ideological Conflict, Tom Tyler, Margarita Krochick

Chicago-Kent Law Review

American’s are polarized in their views about a variety of social and economic issues. This raises the question how political and legal institutions can develop policies and practices that will be accepted by all the various sides to a public controversy. One approach is to build legitimacy, since people are generally more willing to defer to legitimate authorities. The results of a study in which people are asked about their willingness to accept decisions made by the Supreme Court or Congress suggests that the process through which institutions make policy decisions shapes deference in ways that are distinct from the …

Beyond The Opinion: Supreme Court Justices And Extrajudicial Speech, Christopher W. Schmidt

Chicago-Kent Law Review

This Article examines how and why Supreme Court justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting justices have sought to make to the public discourse when employing various modes of extrajudicial speech—lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of justices refraining from off-the-bench commentary …

Tyrone Garner's Lawrence V. Texas, Marc Spindelman

Michigan Law Review

Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas has been roundly greeted with well-earned praise. After exploring the book's understanding of Lawrence v. Texas as a great civil rights victory for lesbian and gay rights, this Review offers an alternative perspective on the case. Built from facts about the background of the case that the book supplies, and organized in particular around the story that the book tells about Tyrone Garner and his life, this alternative perspective on Lawrence explores and assesses some of what the decision may mean not only for sexual orientation equality but also for …

Justice Brennan: Legacy Of A Champion, Dawn Johnsen

Michigan Law Review

During the 1980s, when the Court's approval rating was relatively high, commentators from both ends of the ideological spectrum remarked on the importance of Justices' values and views, and bemoaned the public's utter lack of attention to the Court and judicial appointments. President Ronald Reagan's Department of Justice prefaced an extensive analysis of the momentous issues at stake for the Court and the Constitution with a call for attention to the "critical" yet "often overlooked" "values and philosophies" of federal judges. Professor Laurence Tribe similarly introduced a historical analysis of the Court's vital role by describing Justices' "powerful, if often …

The Ninth Vote In The "Stop The Beach" Case, John Paul Stevens

Chicago-Kent Law Review

No abstract provided.

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type …