Judicial Retirements and the Staying Power of U.S. Supreme Court Decisions

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices who supported a decision retire from the Court. Importantly, this effect exists over and above the impact of retirements on the ideological makeup of the Supreme Court

Newbs Lose, Experts Win: Video Games in the Supreme Court

This Article focuses on the role of the lawyers using the framework described by Professor Richard J. Lazarus in his 2008 article, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar. Lazarus argues the modern Supreme Court bar has come to be dominated by a small number of Supreme Court specialists. Because of their experience and superior knowledge of the Justices and Supreme Court practice, Supreme Court specialists are more likely to obtain outcomes desired by their clients, which are typically large corporations or industry trade associations. Consistent with Lazarus’s finding, this Article shows the video game industry’s representation by a Supreme Court specialist in Brown gave it advantages over California that likely affected the outcome of the case. Part II analyzes whether the counsel in Brown fit within Lazarus’s definition of a Supreme Court specialist. Part III provides background on the Brown case and the cases that came before it. Part IV compares the expert and non-expert representation in Brown by examining the parties’ briefs, the amicus briefs, and the oral argument. Finally, Part V explores whether the case might have come out differently if both sides had been represented by Supreme Court specialists. It concludes that with expert representation, California could have captured the five votes necessary to win, or at least obtained a narrower decision that would have allowed the legislature to try again to craft a law that could survive a constitutional challenge

A Patent Reformist Supreme Court and Its Unearthed Precedent

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules that favor accused infringers over patent holders, and the result has been an era of patent litigation reform far more impactful than anything Congress has achieved. Scholars have observed that the Supreme Court tends to overrule Federal Circuit decisions that (1) impose rigid legal rules as opposed to flexible standards; (2) adopt special rules for patent law cases rather than applying general principles of law and equity applicable to all federal cases; and/or (3) fail to grant sufficient discretion to the district courts. This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit. Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952

Beyond the Supreme Court: A Modest Plea to Improve Our Asylum System

Moderating a session at the Workshop on the Supreme Court and Immigration and Refugee Law at the Georgetown University Law Center, Peter Spiro asked just how important the Supreme Court really is to refugee and immigration law. Unfortunately, the Supreme Court has actively interpreted the Refugee Convention and Protocol, and its decisions have had an adverse affect on important protection issues. James Hathaway knows this well. Yet his article focuses on the two Supreme Court decisions that most practitioners and scholars agree have not translated into serious protection problems in the United States or abroad

High Court Contests: Competition, Controversy and Cash in Pennsylvania & Wisconsin

Fund raising for the 2007 and 2008 judicial elections in Pennsylvania and Wisconsin fell in line with the national trend of increasingly expensive judicial races. Highly competitive and contentious contests in both states resulted in significantly more spending than in previous elections.Fast FactsIn Wisconsin, the two female Supreme Court candidates in the general election raised $2.6 million in 2007, double the$1.3 million raised in the previous most-costly judicial race, which took place in 1999 when another two female candidates vied for one seat.In the 2007 Pennsylvania Supreme Court races, contributions from individuals accounted for 39 percent of the nearly $9.5 million raised by Supreme Court candidates in 2007. Attorneys made up the largest share (more than$1.3 million) of the money given by individuals.Two of the seven Pennsylvania Supreme Court candidates in 2007 were African-American; both raised less than the other five candidates and were soundly defeated in the Democratic primary.Wisconsin's first and only African-American Supreme Court justice lost his seat on the Wisconsin Supreme Court, despite the fact that he raised nearly one-fifth of the money raised by all other Wisconsin high court candidates in 2007 and 2008

Supreme Court Institute Annual Report, 2014-2015

During the 2014-2015 academic year-–corresponding to the U.S. Supreme Court’s October Term (OT) 2014-–the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. A list of all SCI moot courts held in OT 2014-–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of observers-–follows the narrative portion of this report

Juveniles Make Bad Decisions, but Are Not Adults & Law Continues to Account for This Difference: The Supreme Court’s Decision to Apply Miller v. Alabama Retroactively Will Have a Significant Impact on Many Decades of Reform and Current Debate Around Juvenile Sentencing

In January 2016, the Supreme Court made a monumental decision, reflecting the notion that juveniles are not adults. For years, courts have been grappling with the notion that juveniles are not adults. The Supreme Court has finally published an opinion that will have extreme implications on the juvenile justice system. Part I of this Note will discuss the birth of the juvenile justice system. Part II of this Note will briefly introduce the recent oral argument heard before the Supreme Court regarding whether the Supreme Court will apply Miller v. Alabama retroactively or non-retroactively. Part III will discuss the history of the juvenile justice system and show the progression of Supreme Court decisions regarding juveniles in the penal system. Part IV will discuss how neuroscience throughout the years has incessantly proven that juveniles are inherently different than adults. Part V will discuss and analyze the Miller decision and its effects, and Part VI will discuss the many implications that the recent Supreme Court decision to apply Miller retroactively has on the entire future of the juvenile justice system

Cunningham v. California

In Cunningham v. California, the United States Supreme Court voted 6-3 to invalidate California\u27s determinate sentencing law ( DSL ) as violative of the Sixth and Fourteenth Amendments. The Court held that, notwithstanding the California Supreme Court\u27s determination to the contrary, the DSL conflicted with prior Supreme Court precedent by placing sentence-elevating factfinding within the judge\u27s province, thereby violat[ing] a defendant\u27s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments

Regulating supreme court recusals

This article presents a critical analysis of the approach of the U.S. Supreme Court to recusal motions aimed at one of the Justices of the Court. The catalyst was the controversy arising from the weekend duck-hunting trip of U.S.Vice-President Richard Cheney and Supreme Court Justice Antonin Scalia, after which Justice Scalia denied a motion to recuse himself from a pending case in which his hunting partner, Mr Cheney, was a party. This startling decision is final and conclusive since the Supreme Court refuses to intervene in such decisions. Such an approach by the Court is untenable and contrasts starkly with that of the House of Lords, which did not shrink from disqualifying Lord Hoffmann on grounds of bias in the Pinochet case. A comparative study of comparable common law jurisdictions exposes the U.S. Supreme Court as an island of isolation over this issue. It also provides accessible solutions that are disarming in their simplicity. The particular responses that are commended in this article are formalized self-regulation and substitution

Developments in New Zealand jurisprudence

The Supreme Court Act came into force 1 January 2004. It would be fair to describe the reactions to the birth of the Supreme Court are mixed. While many welcomed the fact New Zealand finally had its own final court of appeal and an opportunity to develop its own jurisprudence, there was criticism that the new Supreme Court would be ‘activist’ and challenge the sovereignty of Parliament to make the law. There was also concern that there would be insufficient work for the new court and that the quality of judicial decision-making would suffer without the reference to the Privy Council. While it is too early to assess the contribution of the Supreme Court to the development of New Zealand jurisprudence, it is useful to review whether some of the early criticisms and fears have been realised to date