Supreme Court's Rejection Research Articles

Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958)

Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958)

Rotten Boroughs, Political Thickets, and Legislative Donnybrooks: Redistricting in Texas ed. by Gary A. Keith (review)

Reviewed by: Rotten Boroughs, Political Thickets, and Legislative Donnybrooks: Redistricting in Texas ed. by Gary A. Keith John H. Barnhill Rotten Boroughs, Political Thickets, and Legislative Donnybrooks: Redistricting in Texas. Edited by Gary A. Keith (Austin: University of Texas, 2013. Pp. 224. Maps, figures, notes, sources cited, index.) After each decennial census, states redistrict themselves to bring political districts back into line with changing population distribution and totals. What was once an option is now imperative since Baker v. Carr and the Voting Rights Act of [End Page 236] 1965. After the first mandated redistricting of 1965, Texas has taken to redistricting and, in fact, has been known to attempt redistricting more often than the mandatory once a decade. Whether in the legislature, the state redistricting board, or the courts, in Texas redistricting is an ongoing process that runs almost from one census to the next. The tale of Texas redistricting may not match the drama and excitement of early settlement or independence, but it has its own moments of high drama and low humor. A thorough study of Texas redistricting over the past half century would require multiple volumes. This work has no pretensions toward being that comprehensive study. Rather, the purpose of Rotten Boroughs, Political Thickets, and Legislative Donnybrooks is to provide an impressionist interpretation of redistricting as it has unfolded historically, what the editor refers to as a mosaic, with particular emphasis on the years from 1965. The book contains half a dozen essays of varying length and styles. Gary Keith not only edits but also gets a considerable share of the workload. He is author of the introduction, the historical background, and the two end pieces. Professor of government and international affairs at the University of Incarnate Word in San Antonio, Keith has previously published in Texas history and government. After Keith’s historical overview, Craig Washington the long-time politician, writes from his extensive experience with local and state level redistricting. Then come the lawyers. Democrat David Richards and Republican J. F. Pauerstein provide insider perspectives on successful redistricting in the 1970s, 1980s, and 1990s. José Garza writes on the expansion of Hispanic representation by dealing with Texas litigation with national implications. Rounding out the contributor essays is the political science quantification of the effects of redistricting on political participation, constituent loyalty to incumbents, and party alignment in the two most recent redistricting efforts and subsequent elections. Finally, Keith brings the story up to 2012 in a concluding essay and offers a list of general rules for successful redistricting. Significantly, the update is already outdated after the recent U.S. Supreme Court rejection of the preclearance provisions of the 1965 Voting Rights Act. Redistricting is a complex issue, and the single redistricting effort of 2003 required 400 pages of explication in Steve Bickerstaff’s Lines in the Sand (2007). Rotten Boroughs is a survey that encompasses not just a single episode but the broad swath of redistricting politics and litigation since 1964. Authors must cover a large amount of history in a small number of pages, just ten to twenty per article. Given so little space in which to explore large and complex topics, authors have little space for non-essential detours through the brambles and backwaters of Texas politics. Given that this volume is a survey with a total for all the articles of just 159 pages, a more nuanced and lively treatment is impossible. Overall, although it falls inevitably short of the ideal, this survey is not unsatisfactory. While short of the donnybrooks and rotten boroughs promised by the title, the volume still gives insights into the politics of redistricting. Even the reader knowledgeable of Texas politics will come away from this work with a fuller understanding of how redistricting has worked over half a century and why it matters. For the novice, this volume serves nicely as an introduction to a complex but important topic, one that remains as timely as today’s news. The mosaic achieves its objectives, and that is more than sufficient for one volume. [End Page 237] John H. Barnhill Houston, Texas Copyright © 2014 The Texas State Historical Association

The Quest for a Satisfactory Definition of Terrorism:RvGul

The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide-raging implications for the UK's counter-terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root-and-branch’ review of counter-terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.

Going Beyond Mere Accounting: The Changing Role of India's Auditor General

In early 2013, India's then comptroller and auditor general (CAG), Vinod Rai, while delivering a speech at Harvard University's Kennedy School, wondered whether his office should be confined to being “mere accountants.” That this question could be raised in a public forum, and that too outside India, spoke to the transformation in recent times of Rai's stature and the office that he held. The winds of change were reflected in the Indian Supreme Court's rejection in 2013 of a public interest litigation challenging the authority of the auditor general, who is a constitutional authority, to conduct performance audits of the government. Significantly, the Court ruled, the “CAG is not a munim [accountant] to go into the balance-sheets. The CAG is a constitutional authority entitled to review and conduct performance audit on revenue allocations . . . and examine matters relating to the economy and how the government uses its resources.”

Common Cause in the Culture Wars?

A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

Obama Administration Positions in the Aftermath of the Supreme Court's Rejection of the Bush Administration's Detention Policies at Guantamo

Obama Administration Positions in the Aftermath of the Supreme Court's Rejection of the Bush Administration's Detention Policies at Guantamo

Getting Right with Lincoln . . . and Black Freedom

1956, David Herbert Donald encouraged historians to with Abraham Lincoln by understanding how the memory of the sixteenth president had become a vessel for competing political ideologies. Donald described how, despite Lincoln's Republican roots, Democrats eventually recognized the political value of his image and set out to raid the Republican closet and steal the stovepipe hat. Although party politics dominated Lincoln's own lifetime, his legacy transcended those traditional divides. After his death, Radicals hailed Lincoln as the harbinger of democratic revolution in the South, black suffrage, and even women's rights. Decades later, imperialists insisted that he would favor annexation of the Philippines and war in Cuba. He was simultaneously a supporter and critic of populism and labor unions. Conservatives were convinced that, had he lived, he would fight the introduction of the income tax, while isolationists advanced his disapproval of the League of Nations and the World Court. It seemed that Lincoln was anything to everyone, which caused Donald to lament that his legacy risked becoming devoid of any real meaning.1 As Donald attempted to get right with Lincoln, the rest of the country struggled to get right with the end of legalized segregation. The Supreme Court's rejection of separate but equal schools and public accommodations two years earlier helped pave the way for local desegregation victories, first in Birmingham, and then in Little Rock. The post-Brown atmosphere crackled with the embers of a slow-burning movement that would soon engulf the entire country. Recognizing parallels between the 1960s and the 1860s, Donald believed Lincoln continued to resonate for mid-twentieth-century Americans faced with another crisis of national unity. In our age of anxiety, Donald wrote

Supreme Court holds that the federal securities laws implicitly preclude application of the antitrust laws to the underwriting of initial public offerings

PurposeThe purpose of this paper is to describe the background and reasoning behind the June 18, 2007 US Supreme Court decision in Credit Suisse Securities (USA) v. Billing et al.Design/methodology/approachThe paper explains the US District Court for the Southern District of New York's dismissal of two antitrust class action lawsuits filed against a group of investment banks in 2002, the reversal by the US Court of Appeals for the Second Circuit in 2005, and the Supreme Court's rejection of the Second Circuit's analysis in 2007.FindingsThe Court found that, due to the specialized knowledge required to parse the SEC's rules and distinguish permissible from prohibited conduct, there was a “serious risk” that antitrust courts would produce inconsistent results. The Court also expressed a concern that allowing antitrust claims here would weaken the heightened pleading requirements in the Private Securities Litigation Reform Act, which Congress passed to weed out “umeritorious securities lawsuits.”Practical implicationsThe decision undoubtedly will have important implications regarding the extent to which the antitrust laws may be applied to other conduct regulated by the securities laws, or in the context of other regulated industries.Orginality/valueThe paper provides practical interpretation and guidance by experienced securities lawyers.

Terri and Katrina: A Population-Based Perspective on the Constitutional Right to Reject Treatment

In 2005, two events garnered great national attention: the controversy over the death of Terri Schiavo and the destruction of New Orleans by Hurricane Katrina. Although each event was compelling and even tragic, only the former, which focused on whether a single individual would be removed from life support, was widely understood as implicating constitutional questions. Using a population-based perspective that is influenced by the discipline of epidemiology and focuses attention on both the interests of and the impact of law on populations, this Article analyzes why a controversy concerning the life and death of one woman was understood as raising questions of constitutional law while the failure to protect thousands was not viewed as such. The Article begins reviewing the courts' embrace of an individualistic right-to-reject treatment in cases such as Cruzan v. Director, Missouri Department of Health and contrasting that embrace with the Supreme Court's rejection, in cases such as DeShaney v. Winnebago County Department of Social Services, of any broad right to care and protection. Taken together, these cases demonstrate that contemporary constitutional law fails to appreciate the interdependency of risk and the social and population context in which health threats, and treatment decisions, arise. As a result, the rights vindicated in cases such as Cruzan and Schiavo are particularly shallow as they cannot provide either individuals or populations (such as that in New Orleans) with the opportunity to make meaningful risk-reducing choices. In addition, because of the influence of constitutional discourse in our society, the shallowness of constitutional rights spills over to influence political and legislative priorities. Hence, the fact that the population of New Orleans had no legally recognizable constitutional right to protection against hurricanes may have abetted the government's failure to protect the city's residents. Likewise, a constitutional discourse that focuses on the plight of a single woman while overlooking the multitude of problems faced by large populations may reinforce the political system's failure to protect populations from other potential natural disasters, such as a potential influenza pandemic.

Recent Rulings Weaken Neutral Reportage Defense

This review of recent rulings shows a fair amount of hostility among judges toward claims of neutral reportage, leaving media lawyers hesitant to pursue this libel defense.

Supreme Court's Rejection of “Headquarters Doctrine” Under FTCA

Supreme Court's Rejection of “Headquarters Doctrine” Under FTCA

The Escalating Copyright Wars

Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based music service, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's relative success in its mass litigation campaign. Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, technology developers, and intellectual property rightsholders. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it eventually might lose the war. Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, self-help, education, and licensing. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.