Roberts Court

About: Roberts Court is a research topic. Over the lifetime, 397 publications have been published within this topic receiving 1468 citations.

Antitrust Formalism Is Dead! Long Live Antitrust Formalism! Some Implications of American Needle v. NFL

Abstract: Antitrust observers and football fans alike awaited the Supreme Court’s decision in American Needle v. National Football League for months – inspiring over a dozen articles, and even one from the quarterback of the defending champion New Orleans Saints. Yet the implications of the Court’s decision, effectively narrowing the scope of the “intra-enterprise immunity” doctrine to firms with a complete “unity of interests,” are unclear. While some depict the decision as a schism from the last several decades of antitrust law, we explain why this interpretation is meritless and discuss the practical impact of the Court’s holding. The Court’s antitrust jurisprudence over the past several decades, including that of the Roberts Court and American Needle, has broadly embraced rules that are both relatively easy to administer as well as conscious of the error costs of deterring pro-competitive conduct. Intra-enterprise immunity potentially provided such a “filter” that enabled judges to dismiss a non-trivial subset of meritless claims prior to costly discovery. The doctrine, however, proved notoriously difficult to consistently apply in situations involving common organizational structures. Consistent with error-cost principles that have been the lodestar of the Court’s recent antitrust output, American Needle gave the Court an opportunity to effectively abandon intra-enterprise immunity in favor of the Twombly “plausibility” standard. Rather than marking a drastic change in antitrust jurisprudence, therefore, American Needle should be viewed as the Supreme Court substituting an unreliable screening mechanism in favor of a more cost-effective alternative.

The Disdain Campaign

Abstract: A response to Pamela S. Karlan, ​The Supreme Court​ 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.”Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain.

No Small Feat: Who Won the Health Care Case (and Why Did so Many Law Professors Miss the Boat)?

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.

The Roberts Court and Police Practices: The Impact of Chief Justice Roberts and Justice Alito in Police Practices Cases

Abstract: In police practices cases, the Supreme Court decides issues that determine when the law enforcement interest in solving crimes must give way to the interest of individuals to be left alone by the government. The replacement of Chief Justice Rehnquist with John Roberts and Justice Sandra Day O’Connor with Samuel Alito has now been in place for more than four terms. The time is appropriate to assess the likely impact of these two new members of the Court on police practices cases. This article examines that question by analyzing both the police practices opinions written by Roberts and Alito while they served on U.S. Courts of Appeals and their opinions while on the Supreme Court through the 2008-09 term. The conclusion is that the previous pattern of the police prevailing in the vast majority of these cases is unlikely to change. In addition, there is some evidence to suggest that Chief Justice Roberts is aligning himself closely with Justice Scalia in these cases and may be setting the stage for a significant modification or even elimination of the exclusionary rule.

Reconsidering Substantive Canons

Abstract: This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, afford willful judges a convenient vehicle for massaging different meanings out of the same text, and make statutory interpretation unpredictable, because judges invent new canons and reject old ones to suit their changing tastes. Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges, in particular, overuse such canons.Whereas most previous studies have focused on the Rehnquist Court, this paper reconsiders the substantive canons in light of new data collected from the Roberts Court. The data show that contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court — and that, even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions. Indeed substantive canons often are referenced as an afterthought, or add-on argument supplying minimal additional support to an interpretation reached primarily through other interpretive tools. Perhaps most surprisingly, textualist Justices rarely invoke substantive canons in the opinions they author; indeed, intentionalist Justice Stevens leads the Roberts Court in references to such canons.The paper also challenges scholars’ gloomy warnings that Justices in the modern, New-Textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text. Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at slightly, or even substantially, higher rates than they referenced substantive canons. Moreover, the Court’s own precedents, followed by practical-consequences-based reasoning — rather than substantive canons or legislative history — seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text. The paper first reports the findings from my study of 295 Roberts Court cases and then explores the theoretical implications of these findings for several leading statutory interpretation theories and debates.