Roberts Court

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

The Vanishing Core of Judicial Independence

Abstract: With Congress firmly in control of the jurisdiction, resources, and structure of the federal courts, the scope of the judiciary’s independence is limited indeed. If there is an attribute that can be considered the core of judicial independence, it is the power of the federal courts to decide cases pending before them . In a pair of recent decisions, however, the Supreme Court has called into question whether the federal judiciary possesses even this limited attribute of independence. This Article examines how the Roberts Court has blurred the line between the judicial and legislative powers by ceding to Congress the authority to direct federal courts to decide pending cases for particular parties. After identifying the thorny issues that the Court has left unsettled, this Article suggests an approach to resolving them that preserves both Congress’s role in lawmaking as well as the core of the judiciary’s independence.

Preemption Doctrine in the Roberts Court: Constitutional Dual Federalism by Another Name?

Abstract: This paper argues that the Roberts Court’s preemption decisions suggest a pattern of deferring to state laws in “regulatory” contexts while presumptively preempting them in “commercial” contexts. As I use these terms, “commercial” contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while “regulatory” contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. The “mailbox rule” defining when a contract is accepted is an example of a “commercial” law, while a prohibition on filling a wetlands or building a cement plant in a residential zone are examples of “regulatory” laws. I suggest that, in “commercial” contexts so defined, the Court’s decisions seem to favor preemption. In “regulatory” contexts, the decisions lean against preemption. In both contexts, the Court enforces the independence of each level of government from the other, striking blows for states’ control over their own property and personnel by refusing to give federal agencies exclusive control over the enforcement of state law in Cuomo v. Clearing House Association. The flip side of state autonomy is federal supremacy: Despite the exhortations of some scholars, the Court seems to have continued to resist the idea that state law can be justified by its utility in reforming federal administrative processes. Put simply, the Roberts Court’s decisions seem to follow a traditional script of dual federalism – that is, carving out separate spheres for state and federal governments and enforcing norms of mutual non-interference between these spheres. The paper concludes with speculation about whether there might be any normative justification for this pattern. One might argue that preemption is less costly when the state and federal rules in question define the framework for bargaining as opposed to the assignment of entitlements. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime.

Leidos and the Roberts Court's Improvident Securities Law Docket

Abstract: This Essay addresses a noteworthy case from the U.S. Supreme Court's 2017 Term, Leidos, Inc. v. Indiana Public Retirement System (Leidos). Leidos turned on a significant issue in securities law, as it concerned investors’ ability to bring fraud claims under Rule 10b-5 in connection with one of the more controversial corporate disclosures mandated by the SEC — an overview of uncertainties facing a company’s financial future, known as “Management’s Discussion and Analysis” (MD&A). Although Leidos was billed in both the briefing to the Supreme Court and academic commentary as presenting a classic circuit split, this Essay demonstrates that a careful reading of the underlying precedents reveals no genuine dispute among the federal courts. The case, which was settled in the weeks leading up to its oral argument, therefore left so little to be resolved that it was already ripe for removal from the Supreme Court’s docket on the grounds that certiorari had been “improvidently granted.” The confusion surrounding Leidos is of broader importance for understanding the evolution of the Supreme Court’s securities law jurisprudence since John Roberts became Chief Justice in 2005. Namely, it highlights what is becoming a defining characteristic of the Roberts Court: that it has combined an enthusiasm for granting certiorari on securities law petitions with a tendency to misapprehend the issues (or lack thereof) which they raise. This practice reflects an inefficient use of the Court’s scarce docket space. It also represents a missed opportunity to clarify the many areas of securities regulation that remain mired in doctrinal incoherence.

Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions From 2001-2015

Abstract: The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-pro?le attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and de?nes the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In this paper we set out to add to the empirical study of certiorari by examining an expansive, original dataset of the 93,000 petitions for certiorari between the 2001 and the start of the 2015 Supreme Court Terms. This allows us to investigate decisions made during and directly preceding the Roberts Court. The empirical examination focuses on several fact ors th at are thought to a?ect certiorari decisions, mainly focusing on the individuals and entities involved in the certiorari petitions. These include the lower court that most recently heard the case, the parties, the attorneys, law ?rms, and the participation of amicus curiae. We look at success from both sides of the litigation:both in respect to petitioners and respondents. The ?ndings in this paper are designed to add to our understanding of the extent that these individuals and entities factor into the likelihood of certiorari grants and denials. They are also designed to locate the speci?c individuals and entities that made the largest impact on certiorari decisions for the 2001 through 2015 Supreme Court Terms.

The Due Process Exclusionary Rule

Abstract: CONTENTS I. PREVAILING THEORIES OF THE EXCLUSIONARY RULE A. Deterrence 1. Deterring Too Little 2. Deterring Too Much 3. Precedent 4. Legitimacy B. Equitable Restoration C. Judicial Integrity D. Judicial Review II. THE EXCLUSIONARY RULE AS DUE PROCESS A. Due Process as Adherence to Law B. Exclusion as a Due Process Remedy C. The Fourth Amendment as Pre-Trial Procedure D. Historical Change and Interpretive Method III. MAKING SENSE OF EXCLUSIONARY DOCTRINE A. Basic Explanatory Power 1. Personal 2. Evidentiary 3. Newtonian 4. Transsubstantive 5. Incorporated 6. Presumptive B. The Boundaries of Due Process 1. Grand Juries 2. Habeas Corpus 3. Impeachment 4. Civil Proceedings 5. Nonconstitutional Process 6. The Good-Faith "Exception" IV. REVISING AND EXTENDING EXCLUSIONARY DOCTRINE A. Scope Versus Manner 1. Probable Cause and Excessive Force 2. Stops and Warrants 3. Arrest and Extradition B. Authority, Not Causality 1. Attenuation 2. Inevitability and Independence 3. Identity C. Digital Surveillance 1. Data Mining 2. The Mosaic Theory CONCLUSION The exclusionary rule has entered a new period of crisis. In a pair of 5-4 decisions, the Roberts Court has established the doctrinal basis for radically curtailing the circumstances in which the Fourth Amendment exclusionary rule might apply. The first decision, Hudson v. Michigan, argued at length that the exclusionary rule was a product of a bygone era, when police were unprofessional and egregious Fourth Amendment violations were routine. Because times have changed, the Court reasoned, the exclusionary rule often "forc[es] the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago." The second decision, Herring v. United States, went even further by suggesting the specific form that a twenty-first-century exclusionary rule might take. "To trigger the exclusionary rule," the Court said, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." In other words, the exclusionary rule should apply in Fourth Amendment cases, if at all, only when the police have exhibited "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Read for all they are worth, the sweeping dicta set out in Hudson and Herring would work a revolution. (1) In 1961, Mapp v. Ohio (2) declared "that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (3) Today, while there are of course many exceptions to the exclusionary rule, the basic default established in Mapp--that unconstitutionally obtained evidence is presumptively inadmissible at trial--remains a cornerstone of American criminal procedure. Yet Herring repeatedly cited and endorsed views that Judge Henry J. Friendly wrote to criticize cases like Mapp and their broad endorsement of exclusionary remedies. (4) Many commentators have noted the Court's "ominous" signals. (5) As if to confirm that suspicion, the Justices have already begun to stake out positions in this divisive and apparently inevitable contest. (6) Despite the sense of change in the air, debate over the exclusionary rule has become hackneyed, (7) as evidenced by Herring's invocation of Judge Friendly's 1965 article. (8) Indeed, the battle lines seem to have been drawn long ago. On one side are those who believe that a broad exclusionary rule both deters the police from infringing the Fourth Amendment and honors moral values, such as equitable restoration. (9) On the other side are critics who argue that the rule is both inconsistent with historical practice and unnecessary in light of other actual or potential constraints on police behavior. …