Supreme Court Decisions

About: Supreme Court Decisions is a research topic. Over the lifetime, 1804 publications have been published within this topic receiving 17066 citations.

Obergefell’s Ambiguous Impact on Legal Parentage

Abstract: The Supreme Court decisions in Windsor and Obergefell have the potential to affect the law of parent-child relations, particularly the law that determines who is a legal parent. However, how the cases will affect this area of the law is at best ambiguous. The central question of the law of parentage is when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Windsor and Obergefell the Court endorsed the claim that children whose parents are married are better off socially and legally than non-marital children; the language in both opinions could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court assumed that both members of a same-sex couple are in fact parents of the children, even though it is highly likely that only one adult is biologically related to the child. The unspoken premise is that both are parents because both function as parents (and often, but not always, both participated in the decision-making process that led to the child’s conception and birth). This article examines how the law in the various states balances claims to base legal parentage on biology, function, and marriage, and how the Supreme Court’s same-sex marriage decisions are affecting that balance. The analysis focuses on recent decisions with mixed results from Oklahoma, Maryland, Massachusetts, New York, and Wyoming. The article concludes that the Supreme Court decisions are having some impact in the lower courts, particularly by supporting recognition of the parental claims of adults who are not biologically related to children whom they have raised with their same-sex partners. However, these decisions are limited and cannot protect children and their functional parents adequately in all situations. Therefore, legislative solutions are still needed.

The Economics of Class Actions and Class Action Waivers

Abstract: Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims This group of cases raises the question whether class action waivers should be permitted on policy grounds I examine the economics of class actions and waivers in this paper I distinguish between the standard one-on-one litigation environment and the class action environment In the standard environment, waivers between informed agents enhance society’s welfare In the class action environment, in contrast, not all waivers are likely to enhance society’s welfare

Technical and Scientific Challenges in Implementing "Rapanos'" "Water of the United States"

Abstract: U.S. Supreme Court's rulings in Rapanos v. United States and Carabell v. United States, U.S. 126 S. Ct., and Solid Waste Agency of Northern Cook County, 531 U.S. 159 (2001) (SWANCC), create new scientific and technical challenges by significantly reinterpreting the scope of waters protected under the Clean Water Act (CWA). Both decisions identified characteristics that a water must have to be considered a "water of the United States" protected by the CWA, using terms different from those typically used by aquatic resource scientists. Id. This article provides a brief overview of the types of scientific analyses and technical information available to lawyers and their field staff as they seek to implement CWA programs in a manner consistent with the Supreme Court decisions. In SWANCC, the Supreme Court held that presence of migratory birds was not a sufficient basis for asserting CWA jurisdiction over isolated, intrastate, nonnavigable waters. 531 U.S. 159 (2001). The reasoning in SWANCC could be extended further to suggest that waters need some relationship with a navigable-in-fact water to be protected under the CWA. By introducing the term "isolated" into the issue of what waters were protected by the CWA, the SWANCC opinion has led field staff to consider the relative connectivity among wetlands and other waters as a jurisdictionally relevant factor. For a history of the term "waters of the United States," see y e.g., Donna M. Downing, Cathy Winer & Lance D. Wood, Navigating Through Clean Water Act Jurisdiction: A Legal Review, 23 Wetlands 663 (2003). Five years after SWANCC, the U.S. Supreme Court explored CWA protections for tributaries and adjacent wetlands in Rapanos. In June 2006, the Justices issued five decisions in Rapanos, with no single opinion commanding a majority of the Court. The plurality opinion, authored by Justice Scalia and joined by three Justices, opined that "waters of the United

Black and White After Brown: Constructions of Race in Modern Supreme Court Decisions

Abstract: This essay examines one dimension of a quite broad-ranging topic: how modern American law is explicitly and implicitly constructing the racial identities of contemporary American citizens. I focus on two contrasting conceptions of "white" and "black" racial identity visible in decisions of the United States Supreme Court during the post-Jim Crow era.' I term these the "damaged race" and the "racial irrelevance" views (though the latter is more customarily referred to as "color-blind" constitutionalism).2 I argue that both these conceptions are flawed, because both can easily be understood to imply that whites today are as a group superior to blacks in America, and belief in such superiority can in turn support policies and practices that continue to privilege white interests. I suggest that a third conception, that of "distinct racial damages," does more to make sense of how the law has helped create the racial identities that Americans still experience themselves as possessing. It holds that both "blacks" and "whites" today should be seen as social groups that are still harmed by the consequences of past official constructions of race, though in very different ways. This conception of contemporary racial identities is, I believe, simply accurate; it may also serve as a better guide to legal and political action on racerelated issues. Though I think that this analysis can be extended to encompass the great variety of racial identities in past and present