The Supreme Court 2008 Term


System Effects and the Constitution

Foreword by adrian vermeule :: A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. Familiar examples include Condorcet’s paradox, and the Prisoners’ Dilemma. Public law is rife with system effects that are more important and less familiar. Although such effects are sometimes recognized in local contexts, they have a common analytic structure and can profitably be analyzed in global terms. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order is to be democratic, each of its component institutions must be democratic, taken one by one; and (2) the fallacious assumption that if judges are politically biased, courts must issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory.
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Electing Judges, Judging Elections, and the Lessons of Caperton

Comment by pamela s. karlan :: Few Supreme Court cases inspire a bestselling novel before they’re decided. But Caperton v. A.T. Massey Coal Co. did: the story of how a big damages verdict prompted the head of a large corporation to pour millions of dollars into a judicial election for the court that would hear the company’s appeal inspired John Grisham just as it appalled the Court. Caperton calls to mind far more than the plot of a page-turner. This Comment shows how Caperton also taps into several long-running themes in the law of democracy — the set of doctrines and jurisprudential positions that create the structure within which politics, elections, and governance occur.
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What Everybody Knows and What Too Few Accept

Comment by lawrence lessig :: No one believes that every campaign contribution would tend to corrupt the judicial process. If campaigns were cheap, if contributions were small, if contributors were many or unknown — in any of those cases, the fact that money was contributed to a judge’s campaign could not lead anyone reasonably to believe that the contribution would effect any particular result. In these cases, money would be benign, and the raising of money in these cases should not undermine trust in the institution of the judiciary, at least for any reasonable soul.
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Relinquished Responsibilities

Comment by penny j. white ::
So if . . . it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then — quite simply — the practice of electing judges is itself a violation of due process.
Republican Party of Minnesota v. White, 2002
These words were included in the Court’s opinion in Republican Party of Minnesota v. White not to endorse but to mock the idea that judicial elections violate due process. The constitutionality of judicial elections was not the issue before the Court in White; nor was this issue directly before the Court in Caperton v. A.T. Massey Coal Co., the topic of this Comment. Yet in both cases, and in others the Court has declined to hear, the lurking question that is being ignored is whether present-day judicial elections, with their untoward emphasis on campaign finances, can be reconciled with the due process guarantee of fundamental fairness.
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CURRENT ISSUE CONTENTS
Online Forum

The Constitutional Legitimacy of Freestanding Federalism

Gillian E. Metzger :: In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court’s practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in the “new federalism” cases — in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Manning argues that such invocation of freestanding federalism in constitutional interpretation is fundamentally at odds with the Court’s textualist turn in statutory interpretation, where the Court has rejected general purposive analysis because it fails to respect the reality of legislative compromise. Manning claims that resort to abstract federalism purposes is similarly disrespectful of the processes and compromises used to adopt and amend the Constitution.

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Copyright and Its Rewards, Foreseen and Unforeseen

Justin Hughes :: In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that if the exclusive rights of copyright are justified because they create an ex ante incentive, then the exclusive rights — and the financial yields that follow — should be limited to the uses of the copyrighted work that were foreseen by the creator at the time of the work’s creation. In this response, Professor Justin Hughes argues that this idea initially sounds more radical than it actually is. After exploring the parameters of the Balganesh proposal, he describes how, despite its appeal, it is incompatible with how Congress has expressly written the copyright grant; how nonetheless we might try to integrate the proposal into our fair use doctrine; and how, despite rationality being bounded, Balganesh is mistaken that authors cannot factor unforeseen consequences into their ex ante expectations of the rewards that copyright dangles in front of them. He concludes that in the context of current copyright scholarship, the proposal is yet another clever strategy — albeit one that might be cumbersome and ineffectual — to produce what Congress and the Supreme Court have denied copyright minimalists: a shorter copyright term.

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FORUM ARCHIVE


November 2009

FOREWORD


System Effects and the Constitution
Adrian Vermeule

COMMENTS


Caperton v. A.T. Massey Coal Co.: Due Process Limitations on the Appearance of Judicial Bias

Electing Judges, Judging Elections, and the Lessons of Caperton
Pamela S. Karlan

What Everybody Knows and What Too Few Accept
Lawrence Lessig

Relinquished Responsibilities
Penny J. White

LEADING CASES


CRIMINAL LAW AND PROCEDURE
Fourth Amendment — Exclusionary Rule: Herring v. United States.

Fourth Amendment — Search by School Officials: Safford Unified School District No. 1 v. Redding.

Fourth Amendment — Search Incident to Arrest: Arizona v. Gant.

Sixth Amendment — Right to Counsel — Interrogation Without Counsel Present: Montejo v. Louisiana.

Sixth Amendment — Sentencing — Factfinding in Sentencing for Multiple Offenses: Oregon v. Ice.

Sixth Amendment — Witness Confrontation — Testimony of Crime Lab Experts: Melendez-Diaz v. Massachusetts.

DUE PROCESS
Peremptory Challenges — Harmless Error Doctrine: Rivera v. Illinois.

Postconviction Access to DNA Evidence: District Attorney's Office v. Osborne.

FREEDOM OF SPEECH AND EXPRESSION
Government Speech: Pleasant Grove City v. Summum.

Government Subsidies of Political Speech: Ysursa v. Pocatello Education Ass'n.

CIVIL PROCEDURE
Pleading Standards: Ashcroft v. Iqbal.

FEDERAL PREEMPTION OF STATE LAW
Preemption of State Common Law Claims: Wyeth v. Levine.

QUALIFIED IMMUNITY
Order of Analysis: Pearson v. Callahan.

CIVIL RIGHTS ACT, TITLE VII
Compliance Efforts: Ricci v. DeStefano.

FOREIGN SOVEREIGN IMMUNITIES ACT
Iraqi Sovereign Immunity: Republic of Iraq v. Beaty.

HAWAII APOLOGY RESOLUTION
Alienation of Hawaiian Land: Hawaii v. Office of Hawaiian Affairs.

IDENTITY THEFT
Mens Rea Requirement: Flores-Figueroa v. United States.

NATIONAL BANK ACT
Preemption of State Law Enforcement: Cuomo v. Clearing House Ass'n.

NATIONAL LABOR RELATIONS ACT
Waiver of Right to a Federal Forum: 14 Penn Plaza LLC v. Pyett.

REVIEW OF ADMINISTRATIVE ACTION
Clean Water Act — Judicial Review of Cost-Benefit Analysis: Entergy Corp. v. Riverkeeper, Inc.

Communications Act — Scope of Arbitrary and Capricious Review: FCC v. Fox Television Stations, Inc.

VOTING RIGHTS ACT
Preclearance: Northwest Austin Municipal Utility District No. One v. Holder.

Vote Dilution: Bartlett v. Strickland.

STATISTICS


The Statistics

CURRENT ISSUE CONTENTS