Roberts Court

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

Emerging Constitutional Threats to Food Labeling Reform

Abstract: Much has been written about the American consumer’s untapped power to compel agriculture reform. Food safety and animal welfare advocates urge us to “vote with our wallets” to influence food production practices. This sounds good, but the federal food labeling regulatory scheme has left us frustratingly under-informed. State labeling laws and citizen consumer fraud suits have been thwarted by two powerful doctrinal weapons, federal preemption and free expression protection of commercial speech. Under the Roberts Court’s expansion of corporate personhood, these doctrines have been reshaped and reapplied. One consequence is diminished state police power authority in the name of consumer protection; another consequence is a limitation on consumer tort litigation. Parts I and II introduce the relevant food labeling regulations and traditional doctrinal analyses in consumer protection conflicts. Using recent Supreme Court cases AT&T Mobility v. Concepcion, Wyeth v. Bruesewitz, PLIVA v. Mensing, National Meat Association v. Harris, and Milavetz, Gallop & Milavetz v. United States, Part III suggests that these doctrines are becoming more obstructive to food labeling reform. The conclusion suggests that Milavetz’s approach to compelled commercial speech is an outlier, ensuring that the compelled speech doctrine will remain fertile ground for labeling litigation.

The Decline of Legally Mandated Minority Representation

Abstract: The Supreme Court launched the practice, twenty years ago, of creating safe minority election districts. To comply with the Court's mandate, election districts throughout the United States were redrawn in the wake of the 1990 Census. Ironically, though, ever since the Court spawned this practice, it has been trying to cabin its own creation. In every single plenary decision since that initial moment of creation, the Court has cut back on the obligation to create safe minority districts, whether through constitutional limits on racial redistricting or though narrow readings of the scope of the Voting Rights Act. Nonetheless, the politics of safe districting has retained a life of its own. Even as the Court has reduced the force of legal obligations, the political practice of safe districting remains much as it became in the early 1990s. Whether due to the increased political power of minority communities, the power of incumbent minority officeholders, or misunderstandings about the legal obligations the Voting Rights Act actually imposes today, safe minority districts where such districts can be created remains the norm. In the first Voting Rights Act decision of the Roberts Court, the Court found part of Texas' recent congressional redistricting to violate the Act. As the first full decision on the merits to find the design of a congressional district to violate the Act, the Court's decision has been celebrated by many commentators as signaling a new Court commitment to the race-conscious design of safe election districts. This Article argues to the contrary. Properly understood, the Court's decision is yet another step in the Court's efforts to pull back from the implications of its initial intervention that revolutionized the design of election districts. Even so, this Article concludes, the political practice of safe districting will remain unaffected by the Court's most recent effort to limit it. If so, it will not be the first time a revolution has consumed its own creators.

Former Roberts Court Clerks’ Success Litigating Before the Supreme Court

Abstract: Former Roberts Court clerks are consistent litigators before the Supreme Court. This short Article looks at the unique question of whether former Roberts Court clerks have a litigating advantage before the Roberts Court Justices. The main finding is yes, but only under certain circumstances. Generally, former Roberts Court clerks have about an even chance of receiving votes from the Justices for or against the positions they argue. When they argue positions ideologically aligned with their former Justices though they enhance their chance of success above this 50% range.

Recognizing the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies

Abstract: As Judge Frank Easterbrook famously explained three decades ago, antitrust is an inherently limited body of law. In crafting and enforcing liability rules to combat market power and encourage competition, courts and regulators may err in two directions: they may wrongly forbid output-enhancing behavior or wrongly fail to condemn output-reducing conduct. The social losses from false convictions and false acquittals, taken together, comprise antitrust’s “error costs.” While it may be possible to reduce error costs by making liability rules more nuanced, added complexity raises the “decision costs” incurred by business planners (ex ante) and adjudicators (ex post). In light of all these costs, Easterbrook advocated an approach that would optimize antitrust’s effectiveness: interpret and enforce the antitrust laws so as to minimize the sum of error and decision costs.This Article assesses the degree to which the U.S. Supreme Court (under the leadership of Chief Justice John Roberts) and the federal enforcement agencies (the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice) have embraced the optimizing, “limits of antitrust” approach Judge Easterbrook advocated. In its decisions addressing vertical restraints, exclusionary conduct, and antitrust enforcement, the Roberts Court has consistently recognized antitrust’s limits and has adopted rules consistent with an optimizing approach. The enforcement agencies, by contrast, have eschewed a limits of antitrust approach, at least with respect to exclusionary conduct, vertical restraints, intellectual property rights, and merger review.