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Showing papers on "Roberts Court published in 2013"



Journal ArticleDOI
TL;DR: This article conducted a detailed functional analysis of the Supreme Court's use of dictionaries and found that the use of dictionary usage reflects a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.
Abstract: The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience. Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as heuristic and authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.

17 citations



BookDOI
12 Jun 2013
TL;DR: The case of the Affordable Care Act (ACA) was discussed in detail in this paper, where the Supreme Court affirmed the social contract of the ACA and the individual mandate of individuals.
Abstract: Contributors Introduction, Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison Part I Reflections on the Supreme Court's Decision 1 The Court Affirms the Social Contract Jack M. Balkin 2 Who Won the Obamacare Case? Randy E. Barnett 3 A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA Richard A. Epstein 4 The June Surprises: Balls, Strikes, and the Fog of War Charles Fried 5 Much Ado: The Potential Impact of the Supreme Court Decision Upholding the Affordable Care Act Robert N. Weiner Part II Lines of Argument: Commerce, Taxing and Spending, Necessary and Proper, and Due Process 6 The Missing Due Process Argument Jamal Greene 7 " " and Health Care Reform Andrew Koppelman 8 The Presumption of Constitutionality and the Individual Mandate Gillian E. Metzger and Trevor W. Morrison 9 The Individual Mandate and the Proper Meaning of " Ilya Somin Part III The Important Role of the Chief Justice 10 Judicial Minimalism, the Mandate, and Mr. Roberts Jonathan H. Adler 11 Is it the Roberts Court? Linda Greenhouse 12 More Law than Politics: The Chief, the " Legality, and Statesmanship Neil S. Siegel 13 The Secret History of the Chief Justice's Obamacare Decision John Fabian Witt Part IV The Decision's Implications 14 Federalism by Waiver After the Health Care Case Samuel R. Bagenstos 15 The Health Care Case in the Public Mind: Opinion on the Supreme Court and Health Reform in a Polarized Era Andrea Louise Campbell and Nathaniel Persily 16 How Federalism Looks Now: Medicaid and the Nationalizing Effect of the Supreme Court's Old-Fashioned Federalism in Health Reform Abbe R. Gluck 17 Constitutional Uncertainty and the Design of Social Insurance: Reflections on the ACA Case Michael J. Graetz and Jerry L. Mashaw 18 The Affordable Care Act and the Constitution: Beyond National Federation of Independent Business v. Sebelius Timothy Stoltzfus Jost 19 Medicaid's Next Fifty Years: Aligning an Old Program With the New Normal Sarah Rosenbaum 20 Health Policy Devolution and the Institutional Hydraulics of the ACA Theodore W. Ruger

10 citations


Posted Content
TL;DR: In this article, the authors argue that government involvement in regulating and especially in subsidizing candidate speech inherently entangles government in campaigns in a manner incompatible with core American assumptions about democracy, in much the same way that direct subsidies to churches violate the First Amendment's religion clauses even if made available to all religions.
Abstract: In a pair of recent decisions, Davis v. FEC and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Supreme Court has struck down on First Amendment grounds laws that would have arguably created more, not less speech. The federal statute at issue in Davis actually raised contribution limits for certain candidates being outspent from the personal resources of wealthy opponents; the state law in Arizona Free Enterprise Club provided for state subsidies to candidates being outspent by their opponents and independent spenders.The Court’s opinions in these cases, taken on their own terms, are unsatisfying. The Court correctly recognizes the deeply troubling nature of the government policies at issue in Davis and Arizona Free Enterprise Club, which involved the government in favoring certain candidates over others, but it has not successfully articulated why those policies are offensive to the First Amendment, given that each law provides more resources for a candidate to speak.This Article argues that the Court’s opinions show only an inchoate recognition of the core problem. Government involvement in regulating and especially in subsidizing candidate speech inherently entangles government in campaigns in a manner incompatible with core American assumptions about democracy, in much the same way that direct subsidies to churches violate the First Amendment’s religion clauses even if made available to all religions.The Roberts Court, however, is trapped by its refusal to challenge precedents allowing government subsidies of campaigns and wrongly confusing the government’s authority to regulate the “time, place and manner” of elections under Article I, Section 4 of the Constitution as the authority to regulate political speech and campaigns. This Article argues from history, text, and structure that Article I, Section 4 applies only to regulating such actual election mechanics as the system of election, maintenance of voter lists, and the method of casting and counting ballots, not to the regulation of political debate that precedes elections.The Article further argues that the text of the First Amendment and the structure of the Constitution require a “separation of campaign and state,” limiting direct government regulation or subsidizing of political speech and campaigning analogous to the judicially created doctrine of “separation of church and state.” The Article concludes with a review of some of the implications of such a doctrine.

6 citations


Book
30 Sep 2013
TL;DR: In the Balance as mentioned in this paper, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court, covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court.
Abstract: When John Roberts was appointed chief justice of the Supreme Court, he said he would act as an umpire. Instead, his Court is reshaping legal precedent through decisions unmistakably-though not always predictably-determined by politics as much as by law, on a Court almost perfectly politically divided. Harvard Law School professor and constitutional law expert Mark Tushnet clarifies the lines of conflict and what is at stake on the Supreme Court as it hangs "in the balance" between its conservatives and its liberals. Clear and deeply knowledgeable on both points of law and the Court's key players, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court. Covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court, In the Balance is a must-read for anyone looking for fresh insight into the Court's impact on the everyday lives of Americans.

5 citations


Posted Content
TL;DR: A more complete theory of the legal application of the doctrine of stare decisis can be found in this article, where a normative evaluation of the costs of judicial error is presented.
Abstract: Before a justice on the Supreme Court applies stare decisis in a constitutional case, they must first determine whether the application of the doctrine is appropriate This requires the application of normative theory Depending on the justice’s normative theory, some judicial errors impose such high costs that application of the doctrine of stare decisis is inappropriate and the error should simply be rectified Even in those constitutional cases where theory allows the maintenance of judicial error as a legitimate option, considerations of normative theory affect how the justice ought to balance the costs of upholding against the costs of overruling erroneous precedent In cases where theory suggests that the costs of judicial error are relatively low, avoiding substantial harm to rule of law values might reasonably suggest that the Court should “stand by” the flawed decision Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent This balancing of normative theory and stare decisis occurs in all judicial applications of stare decisis, though not always in a transparent manner Focusing on some of the more high profile discussions of stare decisis by the Rehnquist and Roberts Courts, this essay explores how judicial application of stare decisis generally includes a normative evaluation of the costs of judicial error The counter-balancing impact of normative theory is especially evident in the Roberts Court decision to overrule Austin v Michigan Chamber of Commerce in Citizens United v Federal Election Commission Building upon the implicit normative theory of Citizens United, the essay sketches a more complete theory of stare decisis that takes into consideration both the rule of law considerations of stare decisis and the normative considerations that flow from the theory of popular sovereignty

4 citations


Journal ArticleDOI
TL;DR: In this article, the authors examine the Roberts Court and its relationship to the Obama administration, arguing that the Court's more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime.
Abstract: Abstract This essay examines the Roberts Court and its relationship to the Obama administration. It begins by analyzing the ways in which the Court has been structured by electoral politics over the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. It concludes by considering the impact of President Obama’s 2012 reelection, contending that there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in Court decision-making. Only time will tell, however, whether it will have longer-term consequences for American constitutional development.

3 citations


Posted Content
TL;DR: The Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida as discussed by the authors describes five aspects of the Supreme Court's decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood.
Abstract: In this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) The newfound power to tax inactivity is far less dangerous than the commerce power that was advocated by the government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of published law professor opinions about the case, the author suggests that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism, a gestalt that can now be seen to carry over to a majority of the Roberts Court.

3 citations


Book ChapterDOI
01 Jan 2013
TL;DR: In this article, the authors combine historical evidence and social-psychology insights to argue that coherent and incoherent Supreme Courts are far more likely to overrule precedents, and to aggressively attempt to create broad precedents than are "incoherent" Courts.
Abstract: This chapter combines historical evidence and social-psychology insights to contend that “coherent” Supreme Courts—those with five or more Justices who agree on crucial issues—are far more likely to overrule precedents, and to aggressively attempt to create broad precedents, than are “incoherent” Courts. The author explains the social-psychology dynamics that contribute to the formation (or absence) of coherent Court majorities. He then surveys three historical periods to illustrate the divergent behavior of coherent versus incoherent Courts: the post-1936 New Deal Court, which was highly coherent on most issues and thus ambitious in both overturning and establishing precedent; the Warren Court, which was incoherent and cautious before 1962 but became coherent and aggressive thereafter; and the Rehnquist Court, which was incoherent on most issues (dominated by two centrist swing Justices) and thus adopted a minimalist approach toward precedent. The author concludes with a preliminary analysis of the Roberts Court, suggesting that it is generally incoherent and therefore reluctant to formally overrule precedent in most areas.

3 citations


Posted Content
TL;DR: The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis as mentioned in this paper.
Abstract: The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis This article looks at the Roberts Court's labor and employment law cases through the lens of human resources In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of HR, one that directs this workforce in a just and ethical manner

Book ChapterDOI
12 Jun 2013

Journal ArticleDOI
TL;DR: It is argued that Chief Justice Roberts may have been trying to both uphold the integrity of the Court as a non-partisan legal institution while simultaneously working to curtail the reach of the federal government under the Constitution.
Abstract: In National Federation of Independent Business vs Sebelius, the U.S. Supreme Court upheld most provisions of the Patient Protection and Affordable Care Act (ACA). Some commentators predicted that the Court might overturn the law’s minimum essential coverage provision, known as the ‘‘individual mandate’’ (Tau, 2012). This provision requires most people to purchase a minimum level of health insurance for themselves and their dependents starting in 2014. The fact that the individual mandate survived was not nearly as surprising as how and why the law was upheld. Before the Court announced its decision on 28 June 2012, there was speculation that Chief Justice Roberts might join a majority upholding the law for the purpose of writing the opinion and limiting the ability of the federal government to expand its powers either under the Commerce Clause or Necessary and Proper Clause of the Constitution. This scenario, however, assumed that Justice Kennedy would join with the Court’s more liberal members in upholding the law under the Commerce Clause. Instead, Justice Kennedy joined with Justices Alito, Scalia and Thomas and found that the ACA was unconstitutional and argued that the entire law, not just the mandate, should be struck down. It was surprising to many that Chief Justice Roberts did not join the other conservative Justices and strike down the entire law. In this essay, I review the history of Court decisions regarding the Commerce Clause and social policy, speculate about the reasons Chief Justice Roberts joined with Justices Breyer, Kagan, Ginsburg and Sotomayor to uphold most of the law, and comment on the implications of this decision for health policy in the United States. I argue that Roberts may have been trying to both uphold the integrity of the Court as a non-partisan legal institution while simultaneously working to curtail the reach of the federal government under the Constitution. The Court has not invalidated a law as broad and significant as the ACA since before 1937. Following closely in the wake of the Bush vs Gore [531 U.S. 98 (2000)] and Citizens United vs Federal Election Commission [558 U.S. 310 (2010)] decisions, ruling to strike down the ACA may have undermined the Court’s credibility with the American public. A poll taken just before the

Journal Article
Linda Sugin1
TL;DR: The authors argued that the Court's approach to tax expenditures not only jeopardizes the fundamental protection that the Constitution guarantees individuals, but also has other troubling legal and policy implications, such as weakening the revenue-increasing role of taxation, blur the conceptual structure of the tax law, and undermine the tax reform efforts of other branches of government.
Abstract: This article compares National Federation of Independent Business v Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, rather than state action subject to constitutional limitations, making tax expenditures legally invisible The article parses the Court’s economic and legal approach, and contends that the Court misunderstood the important issues It explains how tax cuts are distinguishable from spending through the tax law, and why tax expenditures – in the aggregate – should be legally important It argues that the Court’s approach to tax expenditures not only reduces the fundamental protection that the Constitution guarantees individuals, but also has other troubling legal and policy implications These decisions weaken the revenue-raising role of taxation, blur the conceptual structure of the tax law, and undermine the tax reform efforts of other branches of government They jeopardize established legal doctrine by destabilizing the precedents on unconstitutional conditions attached to tax benefits, which depend on conceiving tax benefits as government subsidies or privileges These decisions encourage legislatures to adopt provisions that favor high-income taxpayers, while discouraging transparent and equitable government They make the tax law uniquely powerful

Posted Content
TL;DR: Haddon as mentioned in this paper examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education and concludes that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause.
Abstract: This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators must equip students with tools to reclaim legal conversations about freedom and equality. The author, Dean Phoebe A. Haddon of the University of Maryland Francis King Carey School of Law, concludes with recollections of her late aunt, Rachel B. Noel, who played an instrumental part in the evolution of the Keyes case.

Journal Article
TL;DR: The case was United States v. Sebelius (NFIB) as mentioned in this paper, which was the first case in the history of the United States to mention the notion of coercion.
Abstract: "The bill . . . did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability."- Chief Justice John Marshall1INTRODUCTIONAfter a contentious partisan process, Democratic majorities in both houses of Congress succeeded in passing dramatic national reform, which became law upon the President's signature. Opponents quickly filed suit, claiming, among other deficiencies, that the law exceeded congressional authority under the Spending Clause. In a divided opinion, the Supreme Court wrote: "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people."2 Otherwise, the Spending Clause "would become the instrument for total subversion of the governmental powers reserved to the individual states."3 The case was United States v. Butler, and the law struck down was the Agricultural Adjustment Act of 1933.4Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power.5 The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power6 until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012.7 The only two previous Supreme Court cases mentioning the spending power coercion doctrine found it inapplicable, upholding the federal laws in question: the unemployment-compensation provisions of the Social Security Act of 1935 in Steward Machine Co. v. Davis8 and the drinking-age condition on highway funds in South Dakota v. Dole.9 In each case, the Court recognized the theoretical possibility of a federal-spending program unconstitutionally coercing states, but found no coercion on the facts presented. Accordingly, until NFIB, coercion had been relegated to the realm of dicta and theory.10Most of the vast legal and political commentary on the Healthcare Cases,11 which challenged the Patient Protection and Affordable Care Act (the Affordable Care Act or ACA),12 centered on the individual health insurance mandate's prospects under the Commerce Clause.13 But a few of us, familiar with Medicaid, were focused on a much more fundamental challenge to federal power that threatened not only Medicaid but also a host of other federal spending programs.14 NFIB presented a prime opportunity for the Roberts Court to revive the Rehnquist Court's "Federalism Revolution"15 in the context of the Tenth Amendment.Justice Cardozo long ago warned that enforcing the coercion doctrine would "plunge the law in[to] endless difficulties."16 Nevertheless, the Court held that the expansion of Medicaid to include a new category of beneficiaries17 was unconstitutionally coercive because the Secretary of the U.S. Department of Health and Human Services (HHS) could theoretically withdraw all (or part) of federal Medicaid funding in response to a state's failure to comply with federal Medicaid laws.18Seven Justices, including two liberal members of the Court, held the ACA's Medicaid expansion to be an unconstitutionally coercive exercise of the spending power, the first such holding in the history of the Republic.19 While these Justices agreed on this result, however, they fractured into a three-vote plurality authored by Chief Justice Roberts (joined by Justices Breyer and Kagan) and a four-vote joint dissent signed by Justices Scalia, Kennedy, Thomas, and Alito. It was particularly surprising that Justice Kagan, President Obama's appointee and former Solicitor General, thought the Medicaid expansion was unconstitutional.20In the remedy phase, the Roberts plurality did not strike down any part of the Affordable Care Act. Instead, the Court held that an existing statute, on the books for almost eight decades, constitutionally could not be applied to withhold states' Medicaid funding for failing to implement the Medicaid expansion. …

Journal ArticleDOI
TL;DR: In this paper, the authors proposed a new way to operationalize judicial review, which considers both narrow and broad variants of upholding or striking behavior, and identified five distinct categories: (1) Uphold Broadly, (2)Uphold Narrowly, and (3) Strike Down As Applied.
Abstract: In this paper, we propose a comprehensive technique to accurately measure the various options judges have when exercising their power of judicial review. We begin with a discussion of the problems with the way judicial review has been conceptualized, namely as a dichotomous — uphold or strike down — choice. We then propose a new way to operationalize judicial review. Our nuanced measure considers both narrow and broad variants of upholding or striking behavior. We identify five distinct categories: (1) Uphold Broadly, (2) Uphold Narrowly, (3) Strike Down As Applied (4) Strike Down On Face Narrowly, and (5) Strike Down On Face Broadly. We also demonstrate how different combinations of these categories can help measure different conceptualizations of judicial restraint – conventional judicial restraint, judicial minimalism and passive virtues. We then explicate our measure through a detailed examination of illustrative Supreme Court decisions for each category. We also present results from data we have coded for all of the decisions of the Rehnquist and Roberts Courts from the 1994 term through the end of the 2011 term involving judicial review of federal law. Ultimately, we suggest that our more nuanced measure of judicial review will help us better understand judicial decision making, particularly as it relates to separation-of-powers questions and the broader impact of decisions of lawmaking and policymaking in Congress and the executive branch. Understanding the choices justices face when voting to dispose of a case will also help our understanding of choices justices make in the decision-making process. We conclude that the Roberts Court has become a more minimalist that its predecessor, the Rehnquist Court, primarily through exercising what Alexander Bickel termed, "the passive virtues."

Journal Article
TL;DR: In this paper, the authors provide an overview of the Court's pre-Garcetti decisions that establish the normative principles underlying its free speech jurisprudence regarding public employees.
Abstract: There is something profoundly disturbing, almost schizophrenic, about our approach to human rights. We have fought wars, millions of us have served in the military, and several hundred thousand Americans have died, defending our country and protecting our freedom of speech and other rights. Yet we have created a legal system that leaves those rights in the wastebasket when we go to work.-Lewis Maltby1I. What Happened to the Perks of Government Work? Public Employee Free Speech in the Roberts Court EraPublic perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence.2 Defending free speech has been hailed as one of the Court's "signature projects."3 However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech.4 Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students,5 humanitarian organizations,6 and, most pertinent for this Note, public employees.7 The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and humanitarian organizations, on the other, prompted one scholar to declare that "|!|he Roberts [C|ourt strongly protects speech that it likes, while allowing regulation of speech it disfavors."8Garcetti v. Ceballos, in particular, has drawn intense criticism.9 In Garcetti, the Court held that the First Amendment does not protect the speech of public employees made "pursuant to their official duties."10 In so doing, the Court clarified, and departed from, prior precedent governing public employee speech.11 The scholarly reaction to Garcetti has been almost uniformly negative.12 Some fear the Court's holding will limit academic freedom in public universities and deter whistleblowers from highlighting government failure; others object to the unpredictability of Garcetti's inexact, case-by-case standard that categorizes employee activities as falling inside or outside the realm of "official duties."13This Note addresses a significant, more recent problem: the federal circuits have split over whether a public employee may be fired for testifying truthfully in court or for refusing to falsify affidavits.14 After the Court's inexorable command that all speech made pursuant to official duties garners no First Amendment protection, some lower courts have simply applied a straightforward "official duties" test.15 By contrast, other lower courts distinguish giving subpoenaed testimony and filing affidavits from a public employee's official duties because these activities have a citizen analogue.16 However, courts have not delineated the exact parameters of this "citizen-like activities" exception, nor have they identified a rationale solidly rooted in First Amendment jurisprudence that squares such an exception with Garcetti.This Note intends to provide a coherent and practical solution to the problem of public employers threatening to fire employees for refusing to engage in speech that they find ethically objectionable. This Note does not intend to rehash the soundness of Garcetti's central holding. The dissenting opinions in Garcetti and subsequent legal scholarship have rendered the perceived deficiencies of that decision clear.17 For better or worse, the doctrine of stare decisis and the current membership of the Court make wholesale reversal of Garcetti unlikely. As such, this Note accepts Garcetti's holding as it stands, while seeking to define its contours and round its rough edges of inequity. The difficulty is to discern how one can both embrace Garcetti and conclude that sound First Amendment principles bar the manifest injustice inflicted on a public employee who is fired for refusing to lie in order to cover up government abuse.In Part II, this Note provides an overview of the Court's pre- Garcetti decisions that establish the normative principles underlying its free speech jurisprudence regarding public employees. …

Posted Content
TL;DR: The Hudson-Herring-Davis trilogy as mentioned in this paper presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings, which is an unexplored reality that requires new tactical choices and an understanding of the consequences of the Supreme Court's new standard for exclusion.
Abstract: This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the law enforcement officer – conduct that if not sufficiently “culpable” does not require exclusion. This is new territory for lawyers and courts used to an automatic linkage between constitutional wrongs and constitutional remedies. It is an unexplored reality that requires new tactical choices and an understanding of the consequences of the Supreme Court’s new standard for exclusion. This article approaches the Roberts Court’s exclusionary rule reasoning on its own terms. It questions the doctrinal moves of the Supreme Court focused on “culpability” and raises questions about its implication for trial practice. It then offers several suggested responses for defense counsel and prosecutors approaching this new reality.

Journal Article
TL;DR: Barnett as discussed by the authors describes five aspects of the United States Supreme Court's decision in National Federation of Independent Business v. Sebelius that are sometimes overlooked or misunderstood: (1) imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Chief Justice John Roberts's reasoning was the holding in the case, whether viewed from a formalist or a realist perspective; (3) the Court did not uphold the constitutionality of the individual insurance mandate under the tax power; and (4) the newfound power to tax inactivity is
Abstract: In this Essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, I describe five aspects of the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius that are sometimes overlooked or misunderstood: (1) the Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Chief Justice John Roberts’s reasoning was the holding in the case, whether viewed from a formalist or a realist perspective; (3) the Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) the newfound power to tax inactivity is far less dangerous than the commerce power advocated for by the Government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of law professors’ published opinions about the case, I suggest that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism and carried over to a majority of the Roberts Court. INTRODUCTION 1332 I. ECONOMIC MANDATES ARE UNCONSTITUTIONAL 1333 II. THE REASONING OF CHIEF JUSTICE ROBERTS’S OPINION IS THE HOLDING OF THE CASE 1336 III. THE COURT DID NOT UPHOLD THE INDIVIDUAL MANDATE UNDER THE TAX POWER 1337 ∗ Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; Director, Georgetown Center for the Constitution. This Essay was prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, on March 22, 2013. I thank Jason Kestecher for his research assistance. † By permission of Oxford University Press. Extracts from pp.17–27 Ch.2 Who Won the Obamacare Case? by Randy E. Barnett from “Health Care Case: The Supreme Court's Decision and Its Implications” edited by Persily, Metzger & Morrison (2013). 1 Barnett: No Small Feat: Who Won the Health Care Case (and Why Did So Many Published by UF Law Scholarship Repository, 2013 1332 FLORIDA LAW REVIEW [Vol. 65 IV. THE BAD DOCTRINE THAT CHIEF JUSTICE ROBERTS MADE WAS NOT AS BAD AS THE ALTERNATIVE 1340 V. DOES THE DOCTRINE MATTER? 1341 VI. WHY WERE THE LAW PROFESSORS SO WRONG? 1343 CONCLUSION: THE GRAVITATIONAL FORCE OF ORIGINALISM 1349

Journal ArticleDOI
TL;DR: For example, the authors argues that if the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB.
Abstract: If the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The court should grant the request, showing a judicial restraint for which the Roberts bench is not known — and returning the recess appointments controversy to the elected branches of government, where it belongs. If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President's and Senate's shared appointments power.

Journal ArticleDOI
TL;DR: In this article, the authors look at the Roberts Court's labor and employment law cases through the lens of human resources and develop a positive theory of HR, one that directs this workforce in a just and ethical manner.
Abstract: The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of HR, one that directs this workforce in a just and ethical manner.