Category: Supreme Court

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UCLA Law Review Vol. 60, Discourse

Volume 60, Discourse
Discourse

Reflections on Sexual Liberty and Equality: “Through Seneca Falls and Selma and Stonewall” Nan D. Hunter 172
Framing (In)Equality for Same-Sex Couples Douglas NeJaime 184
The Uncertain Relationship Between Open Data and Accountability: A Response to Yu and Robinson’s The New Ambiguity of “Open Government” Tiago Peixoto 200
Self-Congratulation and Scholarship Paul Campos 214
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Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?

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 More

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Stand-ins for Justice?

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 More

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Bones and Genes: Fortune’s Bones Redux

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 More

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Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation

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 More

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Double deference

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.

Read More

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Counting to Five

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.

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Some Thoughts On Florida v. Jardines

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 More