Showing papers on "Supreme Court Decisions published in 2014"

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

Abstract: The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy-conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy-conferring function, is perhaps overstated.

Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions

Abstract: This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.

Judicial Consensus and Public Opinion: Conditional Response to Supreme Court Majority Size

Abstract: Do judicial dissents affect mass politics? The conventional wisdom is that unanimous rulings boost support for Supreme Court decisions, while division fuels popular opposition. However, empirical analysis of public reaction to unanimity and dissent is sparse, incomplete, and inconsistent. Through a series of survey experiments, I expand upon existing research on public opinion of judicial unity. I find that reaction to judicial consensus is dependent on the ideological salience of the issue involved and that, contrary to conventional wisdom and recent findings, dissent can foster acceptance of rulings among the Court’s opponents by suggesting evidence of procedural justice.

Medicaid Payments and Access to Care

Abstract: Medicaid has long faced relatively low physician participation, at least in part because of low payment rates. Some beneficiaries and providers have turned to litigation claiming inadequate access to care, but there may be no remedy in the courts.

After Myriad: Genetic Testing in the Wake of Recent Supreme Court Decisions about Gene Patents

Abstract: Genetic testing is becoming more common and more powerful by the day. The costs of the underlying DNA sequencing technology are plummeting, making it likely that tests based on it will become even more pervasive. The use of tests to determine DNA sequence to help make clinical decisions is here to stay. DNA sequencing is also finding new uses in forensics, determination of ancestry, understanding the history and genetic lineages of human populations and many other applications.

Do Policy Messengers Matter? Majority Opinion Writers as Policy Cues in Public Agreement with Supreme Court Decisions

Abstract: Does the identity of a majority opinion writer affect the level of agreement a Supreme Court decision receives from the public? Using a survey experiment, we manipulate majority opinion authors to investigate whether individuals are willing to agree with Supreme Court opinions authored by ideologically similar justices even though the decisions cut against their self-identified ideological policy preferences. Our study provides insight into the extent to which policy cues—represented by a political institution’s policy messenger—affect agreement with a given policy. We find that a messenger effect indeed augments the level of agreement a given Supreme Court case receives.

An Economic Theory of Supreme Court News

Abstract: In this article, we develop and test an economic theory of Supreme Court news. We hypothesize that information about the Third Branch is newsworthy when it has lower production costs and qualities attractive to the audiences and advertisers desired by news organizations. We examine Supreme Court news in elite newspapers, television news broadcasts, and online news sources during the October 2008 and 2010 terms. The results of our quantitative analyses indicate that all three types of news outlets are more likely to provide content about Supreme Court decisions with substantive importance but vary in their responses to costs and qualities appealing to the lay audience. We conclude by discussing the similarities and differences among news outlets with regard to their selection of Supreme Court information as news content.

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Abstract: Studies of Court-Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation-of-powers models of Court-Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.The separation of powers (SOP)-how the different branches of government collaborate in the making and implementing of public policy-represents a vital aspect of American politics. One SOP relationship garnering substantial attention concerns the interactions between the U.S. Congress and Supreme Court. Scholars have examined the dealings between these institutions in multiple ways, including the extent to which Congress influences Supreme Court decisions (e.g., Clark 2011; Gely and Spiller 1990; Hansford and Damore 2000; Harvey and Friedman 2009; Owens 2010; Sala and Spriggs 2004; Segal 1997; Spiller and Gely 1992), whether the Court constrains congressional decisionmaking (e.g., Martin 2001), and the circumstances under which Congress legislatively overrides Supreme Court decisions (e.g., Blackstone 2013; Eskridge 1991a; Hausegger and Baum 1999; Hettinger and Zorn 2005; Ignagni and Meernik 1994; Ignagni, Meernik, and King 1998). Collectively, the literature uncovers a rich and complex interdependency between these two important American political institutions.A core element of SOP studies is a spatial model of the policy process, in which political actors make decisions as a function of their preferences over the existing status quo and alternatives to it, as well as the preferences of other relevant politicians. Researchers thus assume that preferences over outcomes are a fundamental part of the policy-making process. Of particular interest to us, previous studies either (1) apply theoretical models that assume legislators respond to Court decisions based on their preferences over them (e.g., Gely and Spiller 1990; Segal 1997) or (2) explicitly hypothesize that ideological disagreement with Court decisions causes Congress to pass legislation overriding them (Eskridge 1991a, 1991b; Hettinger and Zorn 2005; Ignagni, Meernik, and King 1998; Staudt, Lindstadt, and O'Connor 2007). This perspective seems reasonable in light of the centrality of policy preferences in contemporary explanations of congressional decisionmaking (Aldrich and Rohde 2000; Cox and McCubbins 2005, 2007; Krehbiel 1991, 1998). Indeed, the congressional literature offers convincing empirical evidence that ideology plays a key role in explaining Members' votes on bills and the passage of legislation (e.g., Poole and Rosenthal 2007). Yet, the literature examining federal legislation overriding Court decisions uncovers no systematic evidence they result from Congress' preferences regarding them.To be fair, existing studies illustrate that preferences play a role in explaining some of Congress' interactions with the Court. One area in which policy preferences matter is in sponsorship (but not passage) of court-curbing bills, or bills aimed at limiting judicial power (Clark 2011; Curry 2007). …

“Antitrust’s Least Glorious Hour”: The Robinson-Patman Act

Abstract: In The Antitrust Paradox, Robert Bork explored many of antitrust’s misadventures. Specifically, Bork severely criticized the Robinson-Patman Act, which he characterized as “antitrust’s least glorious hour.” In this paper, we explore Bork’s criticism of the Robinson-Patman Act along with those of other legal scholars and economists. We analyze the central prohibitions of the act and explore their competitive implications. We also show that the act’s unfortunate prohibitions have been muted by the antitrust agencies’ benign neglect and three recent Supreme Court decisions.

Supreme Court decision on violent video games was based on the First Amendment, not scientific evidence.

Abstract: Comments on the article, "Violent video games and the Supreme Court: Lessons for the scientific community in the wake of Brown v. Entertainment Merchants Association," by C. J. Ferguson (see record 2013-04752-001). The commentators agree with Ferguson that the U.S. Supreme Court case involving violent video games offers scientists a unique opportunity to reflect on violent video game research and findings. However, they disagree with many of the points he made. Due to space limits, they focus on five major areas of disagreement: 1) The Supreme Court decision was based on the First Amendment, not scientific evidence, 2) comparison of two amicus briefs, 3) some disagreement in the field does mean that the field is evenly divided, 4) what constitutes a trivial effect, and 5) laboratory measures of aggression are not trivial. (PsycINFO Database Record (c) 2014 APA, all rights reserved). Language: en

The Impact of Supreme Court Activity on the Judicial Agenda

Abstract: When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.

Arbitration: A Positive Employment Tool and Potential Antidote to Class Actions

Abstract: More than two years have elapsed since employers let out a sigh of relief when the Supreme Court overturned the 9th Circuit decision in Wal-Mart v. Dukes and decertified the class of plaintiffs suing Wal-Mart, the nation’s largest employer, for sex discrimination.1 The class consisted of approximately 1.5 million of the retailer’s former and current female employees.2 While the details of the lower and Supreme Court decisions are beyond the scope of this paper, the lesson for many employers was the fear that class actions, regardless of merit, could put an entire company at risk. While the obvious response, “don’t violate the law,” should seemingly resolve that fear, the fact is that many employment lawsuits, such as wage and hour or discrimination cases, are often difficult to defend. This may occur because: (1) the law is unclear; (2) there are shades of gray in employment decisions, (3) it is difficult to ensure compliance in large multistate or multinational corporations, or (4) sometimes companies face “bad facts” even when they did not violate the law. Although defending the allegations of one employee or even a group is expensive, most employers are able to do this. Defending a class action, however, often requires resources beyond what many employers can marshal. In this paper, we propose a way to avoid such costly litigation: arbitration.

Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism

Abstract: With appropriate caution necessitated by the lessons of recent history, this Article posits that the Supreme Court’s contemporary immigration decisions suggest that the plenary power doctrine, the foundation of immigration exceptionalism, is again headed toward its ultimate demise. To test that thesis, this Article carefully scrutinizes the Supreme Court’s immigration decisions, as well as some other actions, such as certiorari denials in significant immigration cases, from 2009 to the present. This period coincides with the first five years of the Obama presidency, which has been a time during which the Executive Branch has seldomly relied on the plenary power doctrine in arguments to the Court. The review of Supreme Court decisions reveals that, even though the Court now reviews considerably fewer cases than it once did, immigration matters regularly comprise a bread-and-butter part of its docket. Indeed the Court decided five immigration-related merits cases in one Term, an extraordinarily large number for a specialty substantive area of law. The fact that the Court frequently exercises its discretion to accept immigration cases for review suggests that the Justices – like the nation as a whole – consider immigration to be an important, at times contentious, national issue worthy of attention, raising many questions that go to the core of the modern administrative state. In light of the controversy surrounding some of the cases that have come before it, most notably the much-publicized constitutional challenge to Arizona’s SB 1070 and state and local efforts to push the federal government to more vigorously enforce the U.S. immigration laws, the Court could hardly help but be aware of that plain and simple truth.What is perhaps most noteworthy from the review of immigration decisions of the Supreme Court of the last five Terms is that a conservative Court characterized as ideologically driven by some observers consistently has not taken an extreme approach to immigration law and its enforcement. The Roberts Court’s body of immigration decisions indeed is firmly and comfortably within the jurisprudential mainstream of its decisions in other areas of substantive law. The Court has applied ordinary, standard, and routine legal doctrines for the most part in ordinary, standard, and routine ways.Analyzing the body of immigration decisions of the Supreme Court under the leadership of Chief Justice John Roberts in the 2009-13 Terms, this Article concludes that the Court in effect has to a large extent continued to bring U.S. immigration law into the legal mainstream. It has interpreted statutes to avoid constitutional questions and avoided invoking the plenary power doctrine to shield vulnerable statutes from judicial review. Although not yet eliminating the doctrine, the Court has slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism. The undeniable trend in the Court’s immigration jurisprudence is entirely consistent with its efforts over more than a decade to, whenever possible, interpret the immigration laws to avoid deciding serious constitutional questions, and find creative ways to ensure judicial review of removal orders in the face of stringent congressional restrictions that some might reasonably read as purporting to wholly eliminate judicial review. In applying the U.S. immigration laws, both conservative and liberal Supreme Court Justices look first to the text of the Immigration and Nationality Act and spend considerable time debating the proper interpretation of the (often complex) statutory provision in question. In addition, the Justices occasionally differ about the application of conventional legal doctrines to immigration cases, but rarely debate whether generally applicable doctrines should apply to immigration cases.

The Trouble with Amicus Facts

Abstract: The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

Physicians, medical ethics, and execution by lethal injection.

Abstract: In an opinion dissenting from a Supreme Court decision to deny review in a death penalty case, Supreme Court Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”1 In the wake of the recent botched execution by lethal injection in Oklahoma, however, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project has published a sweeping set of 39 recommendations that not only tinker with, but hope to fix, the multitude of problems that affect this method of capital punishment.2

The Progression of “Evolving Standards of Decency” in U.S. Supreme Court Decisions

Abstract: The non-static interpretation of the Eighth Amendment was first introduced by the U.S. Supreme Court in Weemsv.United States. It was further named “evolving standards of decency,” in Tropv.Dulles. ...

The ACA's contraceptive mandate: religious freedom, women's health, and corporate personhood.

Abstract: On June 30 2014 the Supreme Court decided Burwell v Hobby Lobby Stores, Inc, in a deeply divided judgment that engaged religious freedom, women’s health, and corporate personhood. Three closely held for-profit organizations challenged the Affordable Care Act’s contraceptive mandate, objecting to four contraceptive methods that they believe acted as abortifacients, in violation of their Christian beliefs. The Court held that the contraceptive mandate violated the Religious Freedom Restoration Act of 1993, ruling that the Act’s protections extended to closely held corporations, with the mandate substantially burdening their religious freedoms. The Court acknowledged the federal government’s compelling interest in ensuring reproductive services, but said that the government could achieve this objective less restrictively, for example by directly funding the four contraceptive methods or by offering corporations the same accommodation given to non-profit religious organizations. The Court’s judgment privileges corporate rights and religious freedoms, while burdening women’s health and reproductive autonomy. The Court failed to recognize the role of reproductive services in women’s equal participation in social and economic life, and deferred to companies’ subjective beliefs that the four contraceptive methods can prevent a fertilized egg from attaching to the uterus, for which there is no scientific evidence. The Supreme Court also created significant ambiguity around the definition of a ‘closely-held’ corporation, the extent to which large companies have religious freedoms, and whether Hobby Lobby applies to medical services beyond contraception. As well as undermining women’s reproductive health, the case solidifies a jurisprudential trend towards broadening corporate rights, which is constraining public health regulation in a wide range of areas including marketing of junk food, tobacco, and alcohol.

Unraveling Obamacare--can Congress and the Supreme Court undo health care reform?

Abstract: As long as Obamacare's namesake is in the Oval Office, congressional repeal of the Affordable Care Act remains a fantasy. Could Republicans overturn Obamacare after Obama's presidency ends in 2017, or could a Supreme Court decision seriously damage the law?

Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011

Abstract: Once upon a time, law professors and political scientists assumed that the Supreme Court was, as a practical matter, the final word on matters of statutory interpretation. Although Congress as a formal matter could alter a judicial construction with a statutory amendment, the conventional wisdom was that it rarely did so. In 1991, that conventional wisdom was shattered by one of our's empirical study demonstrating that congressional overrides of Supreme Court statutory interpretation decisions blossomed in the period between 1967 and 1990.* 1 Later that year, Congress enacted the Civil Rights Act (CRA) of 1991, overriding as many as twelve Supreme Court decisions that had significantly cut back on workplace antidiscrimination protections.2Since 1991, legal and political science scholarship has confirmed the importance of federal statutory overrides and has explored their incidence.3 Scholars have also debated what they tell us about Court-Congress interaction, as well as how they have been integrated (or not) into statutory policy and even constitutional norms.4 The override phenomenon has not gone unnoticed among Supreme Court Justices, who periodically invoke this tradition in important cases, including one overridden by the 1991 CRA.5 In June 2013, Justice Ginsburg reminded the Court that "Congress has, in the recent past, intervened to correct this Court's wayward interpretations of Title VII" and importuned Congress to correct the Court once again after its decision in Vance v. Ball State University6 narrowed protections against workplace sexual harassment.7Recently, however, the New York Times claimed that overrides had fallen off dramatically after 1991 and that in the new millennium "[t]he number of overrides has fallen to almost none."8 Responding to this possibility, our current study updates the 1991 Eskridge study, bringing the overrides record forward twenty years (so accounting for overrides 1967- 2011) and improving upon the methodology for identifying overrides, as described in Part I. Like the earlier study, the current one treats as an override any statute that "(1) completely overrules the holding of a statutory interpretation decision, just as a subsequent Court would overrule an unsatisfactory precedent," or "(2) modifies the result of a decision in some material way, such that the same case would have been decided differently," or "(3) modifies the consequences of the decision, such that the same case would have been decided in the same way but subsequent cases would be decided differently."9Contrary to the New York Times and to a 2013 override study by Richard Hasen10 (which was the basis for the Times's claim),* 11 Part II of the current study finds that the 1990s was actually the golden age of overrides, with an unprecedented explosion of statutes resetting statutory policy in important ways. After 1998, however, we found that overrides declined as dramatically as they had ascended, though they have not (yet) "fallen to almost none."Overrides never went away, but the climate for overrides has changed. To appreciate the new era, Part III suggests an important distinction. The most-publicized overrides, such as the 1991 CRA, are what we call restorative overrides: maintaining that the Supreme Court has reneged on historic legislative commitments, Congress "restores" what it considers the correct understanding of the statutory scheme, often the understanding that an agency had implemented before being rejected by the Court. Restorative overrides such as the 1991 CRA are an important phenomenon and include other landmark statutes, such as the Pregnancy Discrimination Act of 1978,12 the Voting Rights Act Amendments of 198213 and the Voting Rights Act Reauthorization and Amendments Act of 2006,14 the ADA Amendments Act of 2008,15 the Lilly Ledbetter Fair Pay Act of 2009,16 and the Family Smoking Prevention and Tobacco Control Act.17 Justice Ginsburg's dissent in Vance urged Congress to restore the proper law for Title VII precisely along these lines. …

The Supreme Court Decision in the Hobby Lobby Case: Conscience, Complicity, and Contraception

Abstract: This publication examines the broad implications the United States Supreme Court's holding in Burwell vs. Hobby Lobby et al. could have on medical care. The Court in Hobby Lobby held the company could sue for an exemption from the contraceptive mandate of the Affordable Care Act on grounds that it was a substantial burden on the company's exercise of religious freedom. The reasoning in Hobby Lobby could extend beyond insurance and parallels to debates over "conscience-based" refusals to prescribe or dispense contraceptives. There is concern that companies may use this same logic to discriminate in the name of religion against same-sex spouses with regard to benefit packages; employers may object to state-mandated coverage of in vitro fertilization; and physicians may be able to withhold information from a patient under a religion based moral objection. Evidence shows the most effective methods of contraception that will lead to fewer unintended pregnancies, and thus, fewer abortions is access to the most effective methods of contraception. Hobby Lobby may well be driving its female employees to less effective methods of contraception, leading to more unintended pregnancies and pregnancy terminations. By its own logic, Hobby Lobby may now become complicit in those additional abortions.

When Is a Change Going to Come: Separate and Unequal Treatment in Health Care Fifty Years after the Title VI of the Civil Rights Act of 1964.

Abstract: Enacted in memorial to President Kennedy, the passage of the Civil Rights Act of 1964 was a monumental feat. Title VI of the Civil Rights Act of 1964 was the vehicle used by Congress to put an end to racial bias in health care, education, and other areas. One member of Congress noted that Title VI “represented the moral sense of the Nation that there should be racial equality in Federal assistance programs.” In health care, Title VI prohibits health care facilities in receipt of government funding from using racial bias to determine who receives quality health care. It provides both a private right of action and mandates for government enforcement. Section 601 provides private parties with the right to sue health care facilities that use racial bias to prevent their participation or access to benefits under programs funded by federal financial assistance, such as Medicare or Medicaid payments. Section 602 requires the federal government to undertake measures to ensure that health care facilities receiving federal financial assistance do not prevent participation or access to health care benefits based on race. Unfortunately, fifty years after the passage of Title VI, health care in the United States continues to be racially separate and unequal. Thus, one must ask: when is a change going to come? Prior to the passage of Title VI, hospitals and nursing homes funded by the federal government were racially segregated. The hospitals and nursing homes with the best quality care served Caucasians, while African Americans were treated in substandard facilities. Since the passage of Title VI, many hospitals and nursing homes that receive federal funding have continued to be racially segregated, and those that serve African Americans are still substandard. This separate and unequal health care system in the United States is caused by racial bias prohibited by Title VI. This situation can no longer be ignored. Hence, in this article I undertake a critical analysis of the failure of Title VI to put an end to racial bias in health care in the United States, discuss how racial bias causes racial disparities in African Americans’ access to quality health care and health status, and provide suggestions on how to put an end to racial bias in health care. Using nursing homes and hospitals as case studies, Section II compares the state of health care in the United States prior to and after the passage of Title VI to show that there have been little to no gains made in eradicating racial bias. In fact, David Barton Smith’s research has shown that nursing homes have never achieved full racial integration or actively sought African American patients. The only change in nursing homes after Title VI was the removal of blatant discriminatory advertising. Nursing homes are not the only culprits. Empirical evidence shows that racial bias remains rampant in every facet of health care. In the 1970s, some hospitals remained racially segregated by floor, room, and staff. In the 1980s, African Americans were denied admission to nursing homes that provided excellent quality of care. In the 1990s, studies found that some physicians believed minority patients were unintelligent, which kept physicians from recommending medically appropriate cardiac catheterization, curative surgery for early-stage lung cancer, and antibiotics to treat pneumonia, thereby increasing mortality rates of African Americans. In the 2000s, research showed that race was a significant factor in the decision to close hospitals between 1937 and 2003. In the 2010s, physician surveys showed that some pediatricians’ racial bias prevented them from prescribing medically necessary pain medication for African American children following surgery. Thus, because racial bias persists in health care, it comes as no surprise that health care remains racially separate and unequal. Section III discusses how each branch of the federal government has not only failed to put an end to racial bias in health care as mandated by Title VI, but also it has often further exacerbated the problem by eliminating private rights to challenge the continuation of racial bias and ignoring the existence of racial bias. The U.S. Department of Health and Human Services (HHS), the executive branch agency in charge of enforcing Title VI in health care, has failed to racially integrate and equalize the care provided by hospitals, ignored the use of racial bias in nursing home admissions, and exempted physicians from compliance with Title VI. The judicial branch has not only eviscerated the protections under Title VI by limiting private parties’ right to sue for disparate impact bias, but it has also allowed HHS to neglect its duties to enforce Title VI. Even though congressional reports and congressionally ordered reports by the U.S. Commission on Civil Rights (USCCR) and the Institute of Medicine (IOM) have noted the continuation of racial bias in health care and the government’s failure to enforce Title VI, the legislative branch did not mention racial bias or fix the problems with Title VI when it passed the Patient Protection and Affordable Care Act (ACA). With limited options to challenge racial bias in health care, African Americans continue to be denied equal access to quality health care because of racial bias. Reviewing decades of empirical research studies, Section IV shows how the continuation of interpersonal and institutional racial bias has led to racial disparities in access to quality health care and health status. Interpersonal racial bias is the conscious (explicit) or unconscious (implicit) use of racial prejudice in interactions between individuals. Interpersonal racial bias in health care is best illustrated by physicians’ treatment decisions based on their racial prejudice that results in the unequal treatment of African Americans. This often leads to racial disparities in mortality rates compared to Caucasians. Institutional racial bias operates through organizational structures within institutions and “establish[es] separate and independent barriers” to health care services. According to Brietta Clark, institutional racial bias in health care is best demonstrated by hospital closures in African American communities, which leaves minority neighborhoods without access to medical services. Due to these biases, African Americans are prevented from accessing quality health care, which leads to African Americans’ increased disability and mortality. Unfortunately, when passing the ACA, the government ignored the significance of racial bias in causing racial disparities in access to quality health care, and by extension, health status; instead it focused on research, data collection, and quality improvement programs that do not take into account racial bias. Section V critiques the ACA’s programs designed to address racial disparities in health care, discusses new HHS plans and programs to address racial disparities, and provides solutions to put an end to racial bias in health care and eliminate racial disparities in access to health care and health status. In response to the passage of the ACA, HHS issued an Action Plan to Reduce Racial and Ethnic Health Disparities (Action Plan), developed the National Stakeholder Strategy for Achieving Health Equity in order to ensure that racial and ethnic minorities reach their full health potential, and partnered with the National Consortium for Multicultural Education for Health Professionals to create a medical school course concerning civil rights law and health disparities. These programs are a move in the right direction; however, additional steps are needed. In order to address interpersonal bias, the government should educate health care providers about their racial bias that affects medical treatment decisions and apply Title VI to physicians. To put an end to institutional racial bias, initiatives to put an end to racial disparities in health care need to be integrated with Title VI enforcement and Medicare and Medicaid quality regulations. For example, the collection of racial data that evidences racial disparities in health care should be shared with those prosecuting racial bias under Title VI and those who enforce Medicare and Medicaid to regulate the quality of health care provided by health care facilities. Additionally, both state and federal regulators should require all government-funded health care facilities to conduct strategic diversity planning, which includes increasing the diversity of health care providers and patients within the health care facility. Finally, regulators must require any health care entity planning to close quality health care facilities in predominately minority neighborhoods to submit a racial impact statement that assesses the harm to the minority neighborhood. Many of these solutions, such as provider education and racial impact statements, can be implemented under the current laws and regulations, while others such as applying Title VI to physicians, will require changes in the rules. Nevertheless, without these changes, racial bias in health care will continue making Title VI’s promise of equal access to health care a lie.

Case Salience and the Attitudinal Model: An Analysis of Ordered and Unanimous Votes on the Rehnquist Court

Abstract: How can we explain when ideology is more likely, and less likely, to influence Supreme Court decision making? We examine this question by comparing ordered and unanimous votes on the Rehnquist Court between 1994 and 2004. Building on previous research, our results suggest that the influence of attitudes on Supreme Court decisions varies by the level of case salience. When the case before the Court raises important questions of politics or policy, and therefore attracts a disproportionate amount of attention, the attitudinal model performs admirably: the justices are more likely to split into ideologically coherent blocs and less likely to produce unanimous opinions. Yet the explanatory power of the attitudinal model diminishes significantly in non-salient cases with lower political stakes. These findings underscore the utility of a conditional approach to the study of judicial attitudes.

Coming of Age for the Federal Circuit

Abstract: This has been a watershed year for the Federal Circuit, with the Supreme Court granting cert. in more patent cases than any term since the Circuit’s creation in 1982. Moreover, in case after case this year, the Justices soundly and unanimously rejected the Federal Circuit’s logic. Some attribute the tension between the Federal Circuit and the Supreme Court to a clash between rules and standards, but that view misses the heart of what is occurring. Rather, a strong message echoes through the six Supreme Court decisions. It is a message about restraint, about carefully constructed logic, and about coming into the fold of judicial decision-making. This is a coming of age for the Federal Circuit — or at least the Supreme Court seems determined to coax, cajole and, when necessary, club the Federal Circuit into coming of age.This article examines the messages evident in recent Supreme Court decisions and evaluates whether the Court appears to be gaining ground. Although some indications are positive, others suggest that the Federal Circuit may not be entirely ready to relinquish its role as the judiciary’s enfant terrible.

Do recent US Supreme Court rulings on patenting of genes and genetic diagnostics affect the practice of genetic screening and diagnosis in prenatal and reproductive care

Abstract: Thousands of patents have been awarded that claim human gene sequences and their uses, and some have been challenged in court. In a recent high-profile case, Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al., the US Supreme Court ruled that genes are natural occurring substances and therefore not patentable through 'composition of matter' claims. The consequences of this ruling will extend well beyond ending Myriad's monopoly over BRCA testing and may affect similar monopolies of other commercial laboratories for tests involving other genes. It could also simplify intellectual property issues surrounding genome-wide clinical sequencing, which can generate results for genes covered by intellectual property. Non-invasive prenatal testing (NIPT) for common aneuploidies using cell-free fetal (cff) DNA in maternal blood is currently offered through commercial laboratories and is also the subject of ongoing patent litigation. The recent Supreme Court decision in the Myriad case has already been invoked by a lower district court in NIPT litigation and resulted in invalidation of primary claims in a patent on currently marketed cffDNA-based testing for chromosomal aneuploidies.

The Right to Defense Discovery in Plea Bargaining Fifty Years After Brady v. Maryland

Abstract: Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved by guilty pleas. Unfortunately, the rule the Supreme Court established in Brady does little to prevent gamesmanship. In Brady, the Court required the prosecution to turn over “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The Brady standard developed, however, in the context of a case that went to trial; thus far the Court has not shown an understanding of the discovery concerns specific to plea bargaining. This failure persists despite the fact that our criminal justice system depends on plea bargaining and routinely penalizes defendants who either do not plead guilty or who do not plead guilty early in the process. As long as prosecutors do not withhold exculpatory information, Brady provides no protection against prosecutors who want to link plea offers to discovery.Fifty years later, Brady fails to protect defendants’ rights in the context of a system that routinely pressures them to plead guilty before they know the full extent of the prosecution case against them and in circumstances under which this inadequate information may mean that their lawyers are at a disadvantage in trying to negotiate better deals. Equally troubling is the possibility that, in the absence of good information, lawyers will be unable to fully explain to their clients why they should accept that early “good deal.” As a result, defendants may ultimately plead out later in the process to a worse deal.Following the U.S. Supreme Court’s recent decisions on plea bargaining, the time has come to reexamine the Brady standard in the specific and predominate context of plea bargaining. Lafler v. Cooper and Missouri v. Frye, were companion cases in which the Supreme Court recognized the right to effective assistance of counsel in plea bargaining. These cases are noteworthy as signaling that the Court is moving beyond viewing trials as the “touchstone” of criminal cases. As this article will discuss, it is time for the Court to recognize that effective assistance of counsel in plea bargaining requires that defense lawyers have basic information about the case, both to fully advise their clients and to effectively negotiate on behalf of their clients.This article will first briefly examine how the Brady standard applies and fails to protect defendants in plea bargaining. Next, this article will explain why the recent Supreme Court decisions in Lafler and Frye demand that the Court revisit Brady and consider defense rights to discovery in the specific context of plea negotiations. The article will also offer specific suggestions for defense lawyers to better protect the record on appeal for discovery issues for plea bargaining cases post-Lafler and Frye. Finally, this article will argue for legislative reform that would require open-file discovery as a remedial approach in addition to waiting for the Supreme Court to more fully guarantee defense rights to discovery in plea bargaining. In concluding that legislative action is necessary, this article will use a recent change in Texas law as an example of useful improvements while also illustrating specific problems that can occur when policy-makers and legislators write a discovery law focused on trials and thereby fail to protect defense rights to discovery during the more common process of plea bargaining.

Carbons Into Bytes: Patented Chemical Compound Protection in the Virtual World

Abstract: “Virtual” molecular compounds, created in molecular modeling software, are increasingly useful in the process of rational drug design. When a physical compound is patented, however, virtual use of the compound allows researchers to circumvent the protection granted to the patentee. To acquire protection from unauthorized use of compounds in their virtual form, patentees must directly claim the virtual compound. But Supreme Court decisions such as Bilski v. Kappos and Mayo Collaborative Services v. Prometheus Laboratories, Inc. call into question whether virtual compound claims are patentable subject matter under § 101. Using the guidance offered by the Supreme Court and Federal Circuit, this Issue Brief argues that virtual compound claims are not abstract ideas and therefore, consistent with patent policy, qualify as patentable subject matter.

The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking

Abstract: Political scientists and legal scholars have written a good deal in recent years on the consequences of Supreme Court decisions. Much of this scholarship has been skeptical of the capacity of courts to produce significant social change. Most notably, Professor Gerald Rosenberg has declared the notion that courts can reform society a "hollow hope." While much of my own scholarship has reached conclusions broadly similar to those of Professor Rosenberg, it is a mistake to conclude that Supreme Court decisions in the civil rights context never made much difference. The Court's most important white primary decision, Smith v. Allwright, inaugurated a political revolution in the urban South. This Article considers both the circumstances that enabled Smith to accomplish what it did and the limitations of that accomplishment. My goal is to shed light on the conditions that enable and disable Supreme Court decisions from effectuating significant social change. Part I summarizes the Supreme Court's three pre-Smith white primary decisions. Part II provides legal and political background to Smith v. Allwright and also describes the post-Smith history of the white primary. Part III, the core of the Article, describes the impact of Smith on southern black voter registration. Relying principally on archival material mined from the NAACP Papers, I describe how southern blacks and whites responded to Smith and identify the political and social conditions that enabled Smith to launch a revolution in black political participation in the urban South. This Part also examines the factors that largely nullified the impact of Smith in the rural South. The Conclusion addresses the question of why the Supreme Court's intervention in the white primary context was so much more immediately efficacious than were either its contemporaneous decisions involving criminal procedure issues affecting southern blacks or its slightly later ruling in Brown v. Board of Education.

The Trouble with Amicus Facts

Abstract: he number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision making. The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacymotivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose. INTRODUCTION 1758 I. HISTORY OF THE AMICUS CURIAE 1765 * Associate Professor of Law, College of William and Mary. For their helpful insights and comments I thank Daryl Levinson, Mike Klarman, Caleb Nelson, Neal Devins, Tim Zick, Adam Gershowitz, Alan Meese, Will Baude, Tara Grove, Jeff Bellin, Chris Griffin, and Brianne Gorod. For exceptional research assistance I thank Rebecca Morrow, Adam Wolfe, Laura Vlieg, and Michael Umberger. As always, I thank Drew. T LARSEN_BOOK (DO NOT DELETE) 11/17/2014 6:51 PM 1758 Virginia Law Review [Vol. 100:1757 A. Origins 1765 B. The “Brandeis Brief” and the Birth of Amicus Factual Expertise 1768 II. SUPREME COURT AMICI AS FACTUAL EXPERTS TODAY 1773 A. What Facts Are Amici Supplying and Why? 1773 B. Recent Trends in the Court’s Citation to Amicus Briefs ........ 1777 C. The Significance of Amicus Citations 1780 III. SUBSTANCE-BASED OBJECTIONS TO AMICUS EXPERTISE 1784 A. Amici Citing No Source or a Source Not Publicly Available 1784 B. Amici Citing Sources Created in Anticipation of Litigation 1788 C. Amici Citing Authorities with Minority Views in Their Field 1795 D. Where Is the Check from the Adversary Method? 1800 IV. PROCESS-BASED OBJECTIONS 1802 V. WHAT’S NEXT? SUGGESTIONS FOR REFORM 1809 A. Limiting the Number and Scope of Expert “Witnesses” ........ 1809 B. Transparency of Data Submitted and Methods Used 1811 C. Factual Issues Should Be “Adequately Flagged” in Advance 1812 D. Requiring Response to Significant Counter Evidence 1815 CONCLUSION 1817

Chevron at the Roberts Court: Still Failing after All These Years

Abstract: This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action. On the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act.

A patent perspective on US stem cell research

Abstract: What are the implications of recent US Supreme Court decisions on the patent eligibility of stem cells?