Articles
PDFComing Full Circle: The Journey from Separate but Equal to Separate and Unequal Schools
11/12/2007
In this article, Professor Garda explains how the "separate but equal" doctrine rejected in Brown became the guiding principle in modern education reform. He tracks the evolution of education reform from integration to finance reform to the standards based accountability and freedom of choice reforms embraced in the No Child Left Behind Act to explain why racially separate schools are no longer considered inherently unequal. The desegregation movement's failure to remedy the de facto school segregation resulting from private residential choice dovetailed with school finance reform to make "separate" schools socially acceptable, so long as the schools were equitably funded and the racial isolation was not state sanctioned. The political and legal blunting of school finance equity claims then coincided with the rise of educational "adequacy" claims, standards based accountability, and school choice further encouraging racial separation by promising meaningful equality through educational outcome parity and the liberty inherent in school choice. Professor Garda explains why these reforms resulted in extreme racial and socioeconomic isolation of poor and minority students in the worst schools today, and why integration is not considered the solution despite its tested benefits. By aligning the evolution of past reforms with the current state of education and society's refusal to pursue racial and socioeconomic integration, he explains why the schools of our future will remain separate and unequal.
PDFCongressional Devolution of Immigration Policymaking: A Separation of Powers Critique
11/12/2007
For roughly a decade, federal legislation has devolved to the states some of Congress's authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection "congruence principle" is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article.
PDFA Visible Radiation: Interpreting the History of the Eleventh Amendment as Foreign Policy to Circumscribe the Treaty Power
11/12/2007
In the longstanding debate over the proper place of the Treaty Power in the Constitution's federal structure, on the one hand there are Federalists and on the other hand there are federalists. During the ratification of the Constitution, many Federalists believed the national government needed an expansive Treaty Power to preserve the nascent union. Today, many federalists see such a Treaty Power as a potential threat to the sovereignty of the states. Between 1998 and 2000, the Michigan Law Review published a series of articles by Curtis Bradley and David Golove on competing conceptions of how the Treaty Power fits in the Constitution's federal structure. Bradley argued that federalism delimits the capacity of the national government to create binding national law through the forging of treaties. That is, the national government may not invade the sovereign province of the states by using the Treaty Power to circumvent the restrictions placed on the national government by federalism. In contrast, Golove argued that the national government may use the Treaty Power to legislate in areas generally reserved to the states so long as the Constitution does not explicitly prevent it. Unfortunately, neither author's argument addressed the history of the most important constitutional event bearing on the issue -- the ratification of the Eleventh Amendment.
PDFDoes the Declaration of Independence Pass the Lemon Test?
11/12/2007
In 2004, Walt Disney Pictures released the motion picture, “National Treasure.” The main character, Benjamin Gates, discovers that the United States Declaration of Independence contains a treasure map on the backside of its old parchment, leading to unfathomable wealth of unprecedented historic significance. Gates discovers the symbols of the map because they are not apparent to the natural eye. One must look through a special lens to find the treasure. So it is with the real Declaration. We need not look to fantasy to discover unfathomable wealth of unprecedented historic significance. Hidden from the dualistic, secular eye, we find in the document the secret of our country’s greatness.
PDFWhen is Enough Too Much? The Broadcast Decency Enforcement Act of 2005 and the Eighth Amendment's Prohibition on Excessive Fines
11/12/2007
The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ("BDEA"), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal Communications Commission ("FCC"), and even Capitol Hill. In 2004 alone, the FCC assessed more than $7.9 million in indecency fines, up from a mere $440,000 in fines in 2003. The cost of airing future indecent material increased exponentially when President George W. Bush signed the BDEA into law on June 15, 2006. Although the number of fines being issued had already increased, the FCC and a majority of Congress did not believe that the relatively low maximum fine per incident was enough to prevent multi-billion dollar broadcasters from choosing to air indecent content and pay what to them was a nominal fine. The Broadcast Decency Enforcement Act of 2005, which had been floating around Capitol Hill in various iterations since November 2004, thus raised the maximum fine per violation ten-fold, from $32,500 to $325,000. Consequently, broadcasters now face liability of up to $3 million in indecency fines for one syndicated broadcast aired on multiple stations in multiple markets.
PDFWhy Originalism Won't Die - Common Mistakes in Competing Theories of Judicial Interpretation
11/12/2007
In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its promise of objectivity. The Article also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity.
PDFGenderless Marriage, Institutional Realities, and Judicial Elision
11/09/2007
The stuff of the marriage debate is not static. That is particularly true in the courts, where the legal definition of marriage is debated most thoroughly and most consequentially. This article addresses one of the new arguments advanced in support of man/woman marriage now drawing judicial attention, the argument from social institutional studies. The social institutional argument is a sufficient answer to the variety of constitutional challenges leveled against man/woman marriage. Yet to date, the courts holding for genderless marriage have chosen (consciously it appears) to elude rather than engage argument.
PDFThe Real Story Behind the Justice Department's Implementation of Section 5 of the VRA: Vigorous Enforcement, as Intended by Congress
11/09/2007
This Article examines the manner in which the United States Department of Justice has carried out its responsibility for enforcing the preclearance requirement of Section 5 of the Voting Rights Act since its enactment in 1965. The Justice Department plays a central and preeminent role in the review of new voting laws and procedures adopted by Section 5 jurisdictions, and as Congress moves this year to extend Section 5 beyond its current 2007 expiration date, the question whether the Department has faithfully implemented Section 5 may play an important part in the anticipated Supreme Court review of the constitutionality of the extension. The Article identifies the unique features and broadly-encompassing provisions of the Section 5 remedy, analyzes the specific enforcement approaches utilized by the Justice Department, and scrutinizes the assessments that previously have been offered regarding the Department's enforcement actions. The Article concludes that, historically, the Justice Department has enforced Section 5 in a vigorous and principled manner, that the Department's enforcement approach largely is a product of the manner in which Congress constructed the Section 5 remedy, and that the Justice Department, accordingly, has implemented the Section 5 preclearance remedy in precisely the manner that Congress intended. The Justice Department's performance, therefore, fully supports congressional extension of Section 5 and a ruling by the Supreme Court that the reauthorization is constitutional.
PDFPopular Sovereignty, Judicial Supremacy, and the American Revolution: Why the Judiciary Cannot Be the Final Arbiter of Constitutions
01/25/2007
The development of constitutional government in Great Britain and America is inseparable from the debate and the conflict over sovereignty. In Britain, parliamentary sovereignty triumphed over the divine right of kings to form the foundation of British liberty. In America, popular sovereignty triumphed over parliamentary/legislative sovereignty to render government the servant of the people. Without acceptance of popular sovereignty, judicial review would likely be unknown in the United States. Under parliamentary/legislative sovereignty, the legislative body exercises ultimate authority over statutory law and fundamental law. The legislature can make or repeal law as it sees fit. With the exception of revolution, neither the judiciary, nor the executive, nor the people can override the legislature’s will.
PDFEliding in New York
07/26/2006
In January 2006, this Journal published an article that set forth the social institutional argument for man/woman marriage, demonstrated how that argument is a sufficient response to all constitutional attacks leveled at the laws sustaining that social institution, and detailed how the courts mandating genderless marriage (and the dissenting judges favoring that result) had elided the argument (“the Judicial Elision article”). Since the Judicial Elision article’s early December 2005 cut-off date, two more instances of judicial elision of social institutional realities have cropped up in New York. Both are dissenting opinions, one in the Appellate Division and one in the Court of Appeals. Because those dissenting opinions are interesting, and engagement with them intellectually productive, this article critically examines both. In preparation for doing so, and as an aid to the reader, this article also summarizes central aspects of the social institutional argument as set forth in the Judicial Elision article.
PDFWhy the Supreme Court Was Wrong About the Solomon Amendment
07/12/2006
The Supreme Court in Rumsfeld v. FAIR abandoned basic First Amendment principles. The decision cannot be reconciled with other cases concerning freedom of speech and association. Indeed, if followed, Rumsfeld v. FAIR sets a disturbing and dangerous precedent.
Supreme Court Commentaries
PDFCarey v. Musladin: A Commentary on What is not Prejudicial
11/12/2007
In a 9-0 decision, the United States Supreme Court refused to find that a California state court had acted "contrary to, or involved an unreasonable application of, clearly established Federal law," when that court found that it was not prejudicial for trial audience members to wear buttons with the image of the defendant's alleged murder victim. The Court relied upon the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and its previous rulings in Estelle v. Williams and Holbrook v. Flynn, earlier cases that defined certain actions as prejudicial to a defendant in a court of law. The Court found that due to the lack of any Supreme Court ruling related to the fact pattern in this particular case, it could not find that the state trial court acted contrary to, or unreasonably applied federal law.
PDFCunningham v. California
11/12/2007
In Cunningham v. California, the United States Supreme Court voted 6-3 to invalidate California's determinate sentencing law ("DSL") as violative of the Sixth and Fourteenth Amendments. The Court held that, notwithstanding the California Supreme Court's determination to the contrary, the DSL conflicted with prior Supreme Court precedent "by placing sentence-elevating factfinding within the judge's province," thereby "violat[ing] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments."
PDFJones V. Bock: New Clarity Under the Prison Litigation Reform Act
11/12/2007
On January 22, 2007, the Supreme Court decided the consolidated cases of Jones v. Bock , Williams v. Overton , and Walton v. Bouchard , all of which were Sixth Circuit cases. In a unanimous decision, the Supreme Court provided clarity to what constitutes exhaustion of prison grievance procedures under the Prison Litigation Reform Act of 1995 (PLRA). The Court's decision also offers its view on the correct way to balance the burden between prisoner plaintiffs and the judiciary, which labors to process prisoner complaints. Broken into three discreet issues, the essential holding provides a small victory for prison litigants. First, it determined that a prisoner litigating under the PLRA does not have the burden to plead and demonstrate exhaustion in the complaint. Rather, the defendant must raise lack of exhaustion as an affirmative defense. Second, it addressed whether a prisoner's initial administrative grievance must identify and name all the individuals charged in its complaint. This determination lowered the bar outlined by the Sixth Circuit. Finally, it reviewed whether the PLRA requires dismissal of an entire complaint when some, but not all of the claims asserted have been exhausted. Once again, this issue was decided in favor of prisoners' rights.
PDFMedimmune, Inc. v. Genentech, Inc., (8-1) - A Patent Licensee Does not to Terminate or Breach a License Agreement in Order to Challenge its Validity or Enforceability
11/12/2007
MedImmune, Inc. v. Genentech, Inc. asks whether Article III's restriction on the jurisdiction of the federal courts only to "cases" and "controversies," as required by the "actual controversy" limitation of the Declaratory Judgment Act, necessitates that a patent licensee terminate or breach its license agreement before seeking a declaratory judgment to hold the underlying patent invalid, unenforceable, or not infringed. Breaking with the Court of Appeals for the Federal Circuit, the MedImmune majority clearly establishes a patent licensee's legal right to challenge the validity and enforceability of a patent without actually breaching or terminating the underlying licensing agreement for the challenged patent. Thus, a challenge to the validity of a patent is now a justiciable controversy for which a federal court has subject matter jurisdiction.
PDFPhilip Morris USA v. Williams: A Confusing Distinction
11/12/2007
In Philip Morris USA v. Williams, the United States Supreme Court held 5-4 that it is unconstitutional under the Due Process Clause of the Constitution for a jury to award punitive damages for harm caused to individuals other than the plaintiff. Thus, the Court concluded that, under the Constitution, a trial court could not levy punitive damages out of a desire to punish a company for injuries it inflicts upon others who are "essentially, strangers to the litigation." However, the Court confusingly drew a narrow and arguably contradictory distinction to justify its holding. Under Philip Morris USA, a jury may not use punitive damages "to punish a defendant directly on account of harms it is alleged to have visited on nonparties," but a jury is still permitted to consider the harm to third parties to determine the "reprehensibility" of the defendant's conduct, one of the three factors in assessing the constitutionality of punitive damages. Justice Ginsburg in her dissent wrote that the distinction "slips from my grasp."
PDFPlanned Parenthood Federation of America, Inc. v. Gonzales
11/12/2007
In one of the most pivotal cases of the Fall 2006 Term, the United States Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 by a vote of 5-4. The Court found the Act to be facially valid, despite the absence of an exception for cases in which an abortion is necessary to preserve the health of the mother, stating that the Act was not "void for vagueness" and that it did not impose "an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." The case signaled a departure from the Court's long-standing abortion jurisprudence, and provided an enormous amount of insight into the "Roberts' Court." The decision was the first major indication of how the Court will deal with abortion, how the Court feels about precedent, and how much deference the Court will give congressional findings of fact.
PDFSafeco Ins. Co. of America v. Burr: Defining Notification Requirements and Willfulness under the Fair Credit Reporting Act
11/12/2007
In a recent decision, the United States Supreme Court resolved a critical dispute regarding the interpretation of the Fair Credit Reporting Act ("FCRA") and its notice requirement. In Safeco Ins. Co. of America v. Burr, the Court settled the definition of "willful" violation, a determination that will have enormous effects for insurance companies. Specifically, the Court held that willfulness not only includes knowing violations, but also includes a violation committed in reckless disregard of statutory obligations. While both of the insurance companies in Burr were technically victorious -- both were held not to have willfully violated the FCRA -- the Court's interpretation of willfulness is more consumer-friendly. Still, Burr may have left the door open for insurance companies to avoid the notice requirement of the FCRA.
PDFScott v. Harris
11/12/2007
In an 8-1 decision, the Supreme Court reversed an 11th Circuit ruling denying qualified immunity to a police officer sued by a fleeing motorist who was rendered quadriplegic when his car was pushed over an embankment by the officer's vehicle. . The Court ruled that the officer did not violate the motorist's Fourth Amendment right to be free from unreasonable seizure and that the officer was entitled to summary judgment. Both the federal district court and the 11th Circuit had ruled in favor of the respondent, denying the officer's summary judgment motion based on qualified immunity after finding a Fourth Amendment violation.
PDFUnited Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth.
11/12/2007
The Supreme Court, in a 6-3 decision, upheld two counties' flow control ordinances that require trash haulers to deliver waste to government-owned processing facilities. The Court determined that the Commerce Clause is not violated by laws which favor state or local government entities but treat all private entities equal.
PDFWhorton v. Bockting and the Watershed Exception of Teague v. Lane
11/12/2007
In Whorton v. Bockting, the Supreme Court considered whether its rule from Crawford v. Washington, prohibiting the admission of testimonial hearsay statements without a prior opportunity for the defendant to cross-examine the declarant, should be applied retroactively to cases on collateral appeal under the standard set forth in Teague v. Lane. The determination rested on whether Crawford announced a "new rule" that should be applied retroactively by virtue of its being a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." In a unanimous decision, the Court held that Crawford did announce a "new rule" of criminal procedure, but that "this rule does not fall within the Teague exception for watershed rules." Therefore, the respondent could not benefit from the Crawford rule in collateral review of his original state court conviction.
PDFLawrence v. Florida: Applications for Post-Conviction Relief Are "Pending" Under the AEDPA Only Until Final Judgment in State Court
03/20/2007
On February 20, 2007 , the Supreme Court announced its decision in Lawrence v. Florida, seeking to address confusion surrounding the tolling of a one-year statute of limitations applicable to federal habeas corpus petitions.
PDFThe Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals v. Broudo
03/20/2007
Created pursuant to section 10 of the 1934 Securities Act, Rule 10b-5 is a cornerstone of the federal securities laws. The federal courts' interpretations have largely defined the rule, which seeks to remedy a broad range of securities fraud and market manipulation. Elements of the rule, such as "scienter" and "reliance," were defined at length by earlier court decisions. However, no court had held definitively whether a private plaintiff bringing an action under the rule must demonstrate a causal connection between the alleged fraud and the subsequent loss to that plaintiff. This issue, referred to as "loss causation," was decided by the Supreme Court in Dura Pharmaceuticals v. Broudo.
PDFReconsidering What Makes a Supreme Court Decision 'New'
02/20/2007
In Burton v. Stewart, the Supreme Court narrowly avoided deciding whether Blakely v. Washington is a "new" rule as well as a related question of whether Blakely should be applied retroactively on collateral review. Instead, the Court ruled that Mr. Burton's petition for review did not meet the "gatekeeping requirements of 28 U.S.C. § 2244(b)." By deciding Burton on procedural grounds rather than considering the merits of the underlying claims upon which certiorari was granted, the Court delayed consideration of important issues, which are likely to resurface.
PDFBurlington Northern & Santa Fe Railway Co. v. White
01/25/2007
On June 22, 2006, the United States Supreme Court broadened the purview of the anti-retaliation provision of Title VII in all circuits but one when it held that the provision prohibits those employer actions that would be considered materially adverse by a reasonable employee, regardless of whether such actions occurred at the workplace or were related to employment. In so holding, the Supreme Court did three things worthy of comment. First, the Court expunged the confusion caused by disparate and incompatible treatments of the anti-retaliation provision by the circuit courts. Second, by subjecting all employer action to review, the Court reassured employees that by pursuing or assisting the pursuit of a discrimination claim an employee need not endure, without recourse, those dissuasive actions of his or her employer that are marginally work-related. Third, by instituting a coherent materially adverse standard, the Court assuaged a common fear of employers that any workplace conduct chronologically proximate to a claim of discrimination is kindling for an anti-retaliation claim.
PDFEminent Domain after Kelo v. City of New London: Compensating for the Supreme Court’s Refusal to Enforce the Fifth Amendment
01/25/2007
Governments, both state and federal, have the right to take private property for public use, provided that just compensation is paid. The Fifth Amendment to the United States Constitution sets the legal standard for these propositions; this power is known as the right of eminent domain. In the landmark decision, Kelo v. City of New London, the Supreme Court held that the taking of a citizen’s private property for economic development qualified as a public use within the meaning of the Fifth Amendment. Several scholars, legislatures, and individuals, have objected to Kelo’s extension of the power of eminent domain. The ruling has extended the government’s power of eminent domain to areas once thought unimaginable.
PDFLopez v. Gonzales & Toledo-Flores v. United States: State Felony Drug Convictions Not Necessarily Aggravated Felonies Requiring Deportation
01/25/2007
The United States Courts of Appeals split over whether state felony drug convictions, which were punishable only as misdemeanors under federal law, constituted aggravated felonies under immigration law. The controversy was based upon the interpretation of the Immigration and Nationality Act (“INA”). Under the Act, an alien who is convicted of an “aggravated felony” is automatically deported from the United States. According to the INA, an aggravated felony includes “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18).” Although the INA does not define “illicit trafficking,” Title 18 of the U.S. Code defines “the term ‘drug trafficking crime’ [as] any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.).” While the Controlled Substances Act (“CSA”) is a federal statute, the INA’s definition of aggravated felonies expressly includes crimes “whether in violation of state and federal law.” Since the INA was intended to include state convictions, the Court needed to clarify whether an “aggravated felony” under the INA included a felony conviction by state court that under federal law would be classified only as a misdemeanor.
PDFExxon Mobil Corp. v. Allapattah Services Inc.
04/25/2006
In diversity cases, only one plaintiff or class member must satisfy the amount in controversy requirement.
PDFSmith v. City of Jackson: Age Discrimination Act Authorizes Disparate Impact Claims – But Scope is Narrow
03/23/2006
When Jackson, Mississippi revised its salary structure for police and public safety officers, it gave proportionately higher increases to officers with less than five years of seniority, who were overwhelmingly under forty years old. Thirty officers over the age of forty sued the city for age discrimination, alleging disparate impact. In a plurality opinion, the Court held that the Age Discrimination in Employment Act authorized claims of disparate impact. When it accepted the employer’s justification for the raise and dismissed the plaintiffs’ claim, however, the Court signaled that in the future, the scope of disparate impact claims would be narrow.
PDFMayle v. Felix: Relation Back, Habeas Relief, and the AEDPA
03/23/2006
Following his murder conviction, Felix filed a pro se habeas petition alleging Sixth Amendment violations at trial The petition was filed within the one-year Antiterrorism and Effective Death Penalty Act deadline. He was later appointed counsel, who filed an amended petition alleging Fifth Amendment violations; but that petition was filed five months after the AEDPA deadline had passed. The Court held that the amended petition was not saved by the Relation Back doctrine because it did not share with the earlier claims a common "core of operative facts."
PDFMerck KGaA v. Integra Lifesciences I, Ltd.: Greater Research Protection for Drug Manufacturers
03/23/2006
Merck sought protection under a statutory exemption from claims of patent infringement brought by Integra Lifesciences. The Court held unanimously that the safe harbor contained in 35 U.S.C. § 271(e)(1) protected the use of patented inventions used in preclinical research where the results were not submitted to the FDA. The Court's interpretation of the safe harbor provision broadened protection for those engaged in drug research at a substantial cost to patent-holders.
