Archive for the ‘Supreme Court’ Category
The Humble Justice Scalia
posted by Dave Hoffman
Justice Scalia isn’t often justly lauded for his humility. Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:
“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”
There’s something heart-warming about this short opinion — a bit like Justice Steven’s ode to jalopies and country roads in Scott. It’s also a useful model of rhetorical humility in the face of pretty complex science. Justice Scalia is ordinarily celebrated for his caustic wit & slashing attacks: we should be happy when he takes a different approach.
June 13, 2013 at 10:41 am
Posted in: Supreme Court
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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues
posted by David Schwartz
While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.
May 22, 2013 at 2:13 pm
Tags: citation, empirical legal studies, legal scholarship, Supreme Court
Posted in: Courts, Empirical Analysis of Law, Supreme Court
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Epstein, Landes, & Posner Find SCOTUS Very Pro-Business
posted by Frank Pasquale
Adam Liptak’s story on the Supreme Court offers a nice empirical validation of Jeffrey Rosen’s observation in Supreme Court, Inc.: this is a very pro-business SCOTUS.
Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.
Published last month in the Minnesota Law Review, [a study by Lee Epstein, William Landes, & Richard Posner] ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
The ideological shift on the Court is also affecting the academy. If a scholar aims to influence the Court, he or she would be smart to find some new interpretation of an old right that dramatically expands corporate power. To the extent influence on the Court is taken as a bellwether of the quality of one’s legal scholarship, perhaps that ostensibly neutral evaluative mechanism is promoting the political commitments of a durable conservative majority.
May 5, 2013 at 5:50 pm
Posted in: Supreme Court
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UCLA Law Review Vol. 60, Discourse
posted by UCLA Law Review
Volume 60, Discourse
Discourse
May 3, 2013 at 10:01 pm
Posted in: Book Reviews, Constitutional Law, Cyber Civil Rights, Cyberlaw, Law Rev (UCLA), LGBT, Supreme Court
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Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?
posted by Taunya Banks
This post marks the end of my guest appearance on Concurring Opinions, and as usual, I’ve enjoyed my run.
I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.
Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”
The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read the rest of this post »
April 29, 2013 at 6:33 pm
Posted in: Civil Rights, Education, Law and Inequality, Race, Supreme Court, Uncategorized
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Stand-ins for Justice?
posted by Taunya Banks
The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court. According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.” An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.
I changed the title of this post after an incident on Friday. While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel. The signs said that the protesters were picketing because the Carpenters Union had a beef with the management. As my very general description suggestions, I did not look at the signs too closely. I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle. A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them. Surely the Union did not think that the picketing would be effective. I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?
Hiring stand-ins for pay is a very American institution. Read the rest of this post »
April 21, 2013 at 5:57 pm
Posted in: Economic Analysis of Law, Law Talk, Supreme Court
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UCLA Law Review Vol. 60, Discourse
posted by UCLA Law Review
Volume 60, Discourse
Discourse
| Equality Arguments for Abortion Rights
|
Neil S. Siegel & Reva B. Siegel | 160 |
April 9, 2013 at 4:02 pm
Posted in: Constitutional Law, Law Rev (UCLA), Supreme Court
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Bones and Genes: Fortune’s Bones Redux
posted by Taunya Banks
As a follow up to my post last week asking about human dignity, unburied bones and ownership of human cells, here are two related issues that appeared in the Sunday news.
The first item from Sunday’s Baltimore Sun is the belated report of a Reuters story about the controversy over disposition of King Richard III’s newly discovered remains uncovered in a municipal parking lot by the University of Leicester. The long-lost remains of the King, who died in 1485, were exhumed, and the University was given permission to re-inter the remains in Leicester. But the King’s descendants objected claiming that they were not “consulted … over the exhumation and the license allowing the university to re-bury the King, and [that] this failure breached the European Convention on Human Rights.” They want the body buried in York.
The second item is an op-ed by two medical school academics, Jeffrey Rosenfeld and Christopher E. Mason, that appeared in Sunday’s Washington Post about Association for Molecular Pathology et al v. Myriad Genetics, et al, a case that will be argued in the Supreme Court on April 15th. This is important case that has been mentioned on this blog as recently as last February. SCOTUS even featured a symposium spurred by the controversy. At issue is whether, on some level, human genes are patentable. Rosenfeld and Mason oppose patenting DNA. On the other hand, much like the researchers discussing the HeLa cell, the respondents, Myriad Genetics, et al, argue that the issue is much narrower, namely whether the “human” aspect of the specific sequence of isolated human DNA is the result of the efforts of the respondent, and thus patentable. Read the rest of this post »
April 8, 2013 at 2:53 pm
Posted in: Bioethics, Health Law, Intellectual Property, Privacy, Supreme Court, Uncategorized
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Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation
posted by Albert Wong
Last Term, in an amicus brief in United States v. Jones, 565 U.S. __, several colleagues and I highlighted the Supreme Court’s long, albeit not always clearly stated, history of distinguishing between sense-enhancing and sense-creating technologies for Fourth Amendment purposes. As a practical matter, the Court has consistently subjected technologies in the latter category to closer scrutiny than technologies that merely bolster natural human senses. Thus, the use of searchlights, field glasses, and (to some extent) beepers and airplane-mounted cameras was not found to implicate the Fourth Amendment. As the Court explained, “[n]othing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology” may afford. 460 U.S. at 282 (emphasis added). In contrast, the Court has held that technologies that create a new capacity altogether, including movie projectors, wiretaps, ultrasound devices, radar flashlights, directional microphones, thermal imagers, and (as of Jones) GPS tracking devices, do trigger the Fourth Amendment. To hold otherwise, as the Court has stated, would “shrink the realm of guaranteed privacy,” leaving citizens “at the mercy of advancing technology.” 533 U.S. at 34-36.
In fact, of the landmark cases involving technology and the Fourth Amendment during the past 85 years (from United States v. Lee, 274 U.S. 559, in 1927 to Jones in 2012), only in one instance did the Supreme Court appear to deviate from this distinction between sense enhancement and sense creation. In that case, United States v. Place, 462 U.S. 696, and its successors, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, the Court held that the use of trained narcotics-detection dogs (more apparently similar to using a new capacity than merely enhancing a natural human sense) did not implicate the Fourth Amendment. In our amicus brief in Jones, we rationalized Place, Edmond, and Caballes by arguing that dogs were unique, being natural biological creatures that had long been used by the police, even in the time of the Framers. Further, we argued, a canine sniff, unlike the use of, say, a wiretap or a thermal imager, “discloses only the presence or absence of narcotics, a contraband item.” 462 U.S. at 707 (emphasis added). Still, the apparent ‘dog exception’ was rankling. Read the rest of this post »
March 31, 2013 at 11:35 am
Posted in: Anonymity, Constitutional Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology, Uncategorized
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Double deference
posted by Aaron Saiger
I know that I am supposed to be caught up along with everyone else in the same-sex marriage cases, but I am still distracted by Decker v. Northwest Environmental Defense Center, decided last week at the Supreme Court. In a separate opinion designed to push the buttons of what Scotusblog’s John Elwood called Supreme Court nerderati, Justice Scalia again called for the reconsideration of the principle of Auer deference. Auer says that just as courts should defer to agencies’ reasonable interpretations of ambiguous provisions in their organic statutes, so should they defer to agencies’ reasonable interpretations of ambiguous provisions in regulations that they themselves promulgate. Chief Justice Roberts and Justice Alito suggested that they would also be open, in a different case, to reconsidering Auer.
March 27, 2013 at 10:00 pm
Tags: decker, deference
Posted in: Administrative Law, Environmental Law, Supreme Court
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Counting to Five
posted by Gerard Magliocca
Here is a link to a terrific post by Tom Goldstein that raises two very interesting points:
1. The Court could vacate and remand Perry for reconsideration in light of Windsor (the DOMA case). That would not resolve the standing issue, but would allow the Justices to dodge the issue.
2. If Justice Kennedy did not vote to grant certiorari, voting to dismiss the writ as improvidently granted could be contrary (at least in spirit) to the rule that you only need four Justices to vote yes on certiorari for the Court to hear the case.
March 26, 2013 at 6:23 pm
Posted in: Supreme Court
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Some Thoughts On Florida v. Jardines
posted by Ryan Calo
Amidst all of the discussion of gay marriage at One First Street NW today, you may have missed that the Supreme Court decided Florida v. Jardines. In a five-four opinion by Justice Scalia, the Court held that bringing a police dog within the curtilage (in this case, the front porch) of the home to sniff for drugs constitutes a search for purposes of the Fourth Amendment. As Orin Kerr predicted, the opinion turned on the lack of implied consent to approach with a dog, which converted the detectives’ action into a trespass. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s opinion. Justice Alito wrote for the dissent, joined by Justices Kennedy, Breyer, and the Chief Justice. Justice Kagan, joined by Justices Ginsburg and Sotomayor, wrote separately to note that they “could just as happily have decided [the case] by looking to Jardines’ privacy interests.” Read the rest of this post »
March 26, 2013 at 1:21 pm
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Uncategorized
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Evolved
posted by Kaimipono D. Wenger
Evolving Evolved (kw)
March 1, 2013 at 2:19 am
Posted in: Asides, LGBT, Supreme Court
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Stanford Law Review Online: Anticipating Patentable Subject Matter
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Dan L. Burk entitled Anticipating Patentable Subject Matter. Professor Burk argues that the fact that something might be found in nature should not necessarily preclude its patentability:
The Supreme Court has added to its upcoming docket Association for Molecular Pathology v. Myriad Genetics, Inc., to consider the question: “Are human genes patentable?” This question implicates patent law’s “products of nature” doctrine, which excludes from patentability naturally occurring materials. The Supreme Court has previously recognized that “anything under the sun that is made by man” falls within patentable subject matter, implying that things under the sun not made by man do not fall within patentable subject matter.
One of the recurring arguments for classifying genes as products of nature has been that these materials, even if created in the laboratory, could sometimes instead have been located by scouring the contents of human cells. But virtually the same argument has been advanced and rejected in another area of patent law: the novelty of patented inventions. The rule in that context has been that we reward the inventor who provides us with access to the materials, even if in hindsight they might have already been present in the prior art. As a matter of doctrine and policy, the rule for patentable subject matter should be the same.
He concludes:
“I can find the invention somewhere in nature once an inventor has shown it to me” is clearly the wrong standard for a patent system that hopes to promote progress in the useful arts. The fact that a version of the invention may have previously existed, unrecognized, unavailable, and unappreciated, should be irrelevant to patentability under either novelty or subject matter. The proper question is: did the inventor make available to humankind something we didn’t have available before? On this standard, the reverse transcribed molecules created by the inventors in Myriad are clearly patentable subject matter.
Read the full article, Anticipating Patentable Subject Matter at the Stanford Law Review Online.
February 21, 2013 at 10:30 am
Tags: biology, Intellectual Property, law and science, nature, patent law, patents, science, Supreme Court
Posted in: Intellectual Property, Law Rev (Stanford), Supreme Court
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The Yale Law Journal Online: New Essays
posted by Yale Law Journal
The Yale Law Journal Online has just published Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, by Alex Hemmer, and Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, by Ashira Pelman Ostrow.
Ostrow writes that
[i]n Dissolving Cities, Professor Michelle Wilde Anderson suggests that municipal dissolution could enable counties to serve regionalist goals. This Essay argues that, on balance, municipal dissolution will not trigger the emergence of counties as agents of regional reform. Modern metropolitan regions span city, county, and state borders. As the scale of the region expands, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems. The Essay concludes by considering the role that the federal government can play, and has historically played, in facilitating regional collaboration at the appropriate scale.
As Hemmer explains,
Summary disposition is a procedural innovation—added only belatedly to the Supreme Court’s rules—in which the Court dispenses with a case without briefing or oral argument. It presents a puzzle for students of appellate decisionmaking: how can a case be significant enough to merit the Court’s consideration, but not significant enough to warrant the benefits of adversarial procedure? Commentators have asserted that the Roberts Court is more likely than its predecessors to use summary disposition to resolve cases, but this Essay presents the first systematic look at its use of that procedure. The Essay finds that—contrary to general understanding—the Roberts Court has not used summary disposition more than its predecessors did. Rather, it has used the procedure in different and potentially dangerous ways.
Preferred citations:
Alex Hemmer, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 YALE L.J. ONLINE 209 (2013), http://yalelawjournal.org/2013/1/23/hemmer.html.
Ashira Pelman Ostrow, Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, 122 YALE L.J. ONLINE 187 (2013), http://yalelawjournal.org/2013/01/03/ostrow.html.
January 30, 2013 at 5:02 pm
Posted in: Supreme Court, Uncategorized
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The Stanford Law Review Online: Defending DOMA in Court
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.
He concludes:
Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.
Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.
January 28, 2013 at 10:30 am
Tags: Civil Procedure, Civil Rights, Constitutional Law, same sex marriage, standing, Supreme Court
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Courts, Current Events, Law Rev (Stanford), Supreme Court
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Book Review: A Brief History of Judging – From the Big Bang to Cosmic Constitutional Theory
posted by Josh Blackman
J. Harvie Wilkinson, III, Cosmic Constitutional Theory (2012)
Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.
Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activist all the way down, to borrow another cosmic image. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”
But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.
Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”
To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Judge Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided cases any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.
More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.
And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”
Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.
- Josh Blackman, Assistant Professor, South Texas College of Law
January 8, 2013 at 2:00 pm
Posted in: Book Reviews, Constitutional Law, Jurisprudence, Supreme Court
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Stanford Law Review Online: Software Speech
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:
When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.
He concludes:
By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.
Read the full article, Software Speech at the Stanford Law Review Online.
November 15, 2012 at 10:18 am
Tags: Constitutional Law, Cyber Civil Rights, First Amendment, search engines, technology, videogames
Posted in: Constitutional Law, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Law Rev (Stanford), Supreme Court, Technology
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Audio of the Health Care Opinion Hand Down
posted by Gerard Magliocca
It can be found here. Justice Kennedy’s dissent from the bench is pretty lively.
October 3, 2012 at 5:32 pm
Posted in: Supreme Court
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Vanderbilt Law Review En Banc – New Publications
posted by Vanderbilt Law Review
Vanderbilt Law Review En Banc is pleased to announce several new publications.
Three response essays in our Fisher v. University of Texas at Austin Roundtable are now available, including:
Revisiting Grutter and Its Diversity Rationale: A Few Reactions to Professor Blumstein’s Critique
Vikram David Amar · 65 Vand. L. Rev. En Banc 195 (2012)
Whatever
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 203 (2012)
The Education of an Admissions Office
Gerald Torres · 65 Vand. L. Rev. En Banc 211 (2012)
We have also published two new book reviews:
American Legal History Revisited
James W. Ely, Jr. · 65 Vand. L. Rev. En Banc 185 (2012), Reviewing: G. Edward White, Law in American History, Volume 1: From the Colonial Years Through the Civil War (Oxford University Press, 2012).
Justice for All?
Rebecca K. Lee · 65 Vand. L. Rev. En Banc 217 (2012), Reviewing: Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011).
September 26, 2012 at 8:55 am
Posted in: Constitutional Law, Law Rev (Vanderbilt), Law Rev Contents, Law Rev Forum, Supreme Court
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