Supreme Court of the United States Commons^™

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …

Reverse Payment Settlements: The U.S. Supreme Court Has Finally Agreed To Resolve The Issue, 12 J. Marshall Rev. Intell. Prop. L. 787 (2013), Tyler Cho

UIC Review of Intellectual Property Law

Paragraph IV of the Hatch-Waxman Act provides a mechanism for litigating pharmaceutical patent infringement disputes. Many of these cases have been settled with “reverse payments” from the brand to the generic in return for delayed generic entry. The U.S. Federal Trade Commission (FTC) has contested a number of these settlements with mixed results. On July 16, 2012, the U.S. Court of Appeals for the Third Circuit issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under U.S. antitrust laws. By holding that a patent settlement can …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

40th Anniversary Of Roe V. Wade: Reflections Past, Present And Future, Linda L. Schlueter

Faculty Articles

This Article addresses the historical developments leading to the Roe decision, reviews the cases that continue to challenge the Court's holding in Roe, and makes recommendations to protect women and minors as long as Roe remains in effect. Part II reflects the historical legal foundations that protected life and the shift in emphasis to a liberty interest that led to the Roe decision. Part III analyzes the factual and legal background of Roe v. Wade, and its companion case of Doe v. Bolton, reveals their basis in lies and deception, and exposes that the Supreme Court's underlying assumptions that are …

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

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 …

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, 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 …

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, …

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 …

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 …

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 …

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.

The Continuing Gloom About Federal Judicial Rulemaking, Richard D. Freer

Faculty Articles

In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in “crisis” and its fans are experiencing “malaise.” This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro …

Standing's Expected Value, Jonathan R. Nash

Faculty Articles

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 …

Symposium Honoring The Advocacy, Scholarship, And Jurisprudence Of Justice Ruth Bader Ginsburg: Introduction, Katherine M. Franke

Faculty Scholarship

I want to welcome back Justice Ginsburg to Columbia Law School. She has been a frequent visitor since her time here as a student in the late 1950s and again as a member of our faculty in the 1970s. I know she knows, but it is worth reiterating that she always has a home here at Columbia.

A Philosophy Of Hope And A Landscape Of Principle: The Legacy Of David Getches's Federal Indian Law Scholarship, Rebecca Tsosie

University of Colorado Law Review

In this essay, Professor Tsosie documents two important aspects of David Getches's work in the field of federal Indian law. First, Professor Tsosie observes that David Getches was a strong proponent of guiding principles and a consistent structure in the law. Consequently, he was one of the first scholars to observe the ways in which the contemporary Supreme Court was "remapping" the field of federal Indian law, apparently in service of the Court's commitment to states' rights and the protection of mainstream values. David noted the dangers of this "subjectivist" approach and urged a return to the foundational principles of …

Conversation With Associate Justice Ruth Bader Ginsburg, Justice Ruth Bader Ginsburg

University of Colorado Law Review

No abstract provided.

State V. Henderson: A Model For Admitting Eyewitness Identification Testimony, Amy D. Trenary

University of Colorado Law Review

Eyewitness identification testimony is notoriously unreliable and has significantly contributed to wrongful convictions. Most courts use the standard set forth by the Supreme Court in Manson v. Brathwaite to assess whether eyewitness identifications are sufficiently reliable to present to the jury. But in the thirty-five years since Manson, an extensive body of research has amassed that calls into question the continuing validity of that standard. Researchers have identified numerous system variables (procedural elements subject to official control) and estimator variables (factors related to the witness, perpetrator, and event) that affect the accuracy of eyewitness identifications. The Manson standard fails to …