• Faculty Weigh In on SCOTUS Decisions (*Updated 7-12)

    by  • June 25, 2013 • Faculty Commentary, Featured Posts • 0 Comments

    A flurry of decisions has been handed down by the U.S. Supreme Court in the last few weeks as the October Term 2012 comes to a close. Many of our faculty have closely followed or participated in some of the major cases, filing briefs, writing scholarly articles, and providing media commentary. Now, they weigh in on recent decisions, interpreting their implications for both law and society. Below, browse a list of faculty members who have written responses to decisions so far, and be sure to check back on this post for updates as more decisions are announced.


    Andrews_Lori thumb Lori Andrews, “U.S. Supreme Court Liberates Breast Cancer Gene

    Case: Association for Molecular Pathology v. Myriad Genetics, Inc. (opinion)

    Professor Lori Andrews—who received grants from the federal Department of Energy Human Genome Project and from the Robert Wood Johnson Foundation to study the impact of gene patents on health care and medical research—played an integral part in shaping the Court’s decision in Myriad. She filed amici curiae briefs on behalf of medical organizations, including the American Medical Association, the American Society of Human Genetics, and the American College of Obstetricians and Gynecologists, arguing that genes are unpatentable products of nature. Here she traces she positive implications of the Court’s decision for patients, researchers, and pharmaceutical companies.

    Media Commentary: Authored “My body, my property,” op-ed in the Chicago Tribune.


    Baker_Katharine thumbKatharine Baker, “Justice Alito: Right and Wrong

    Case: United States v. Windsor (opinion)

    Professor Katharine Baker worked on amicus briefs—including one on behalf of Family Law Professors and the AAML—in favor of the Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act in Windsor. In this post, she points out that Justice Alito, in his dissenting opinion, was right to claim that equal protection doctrine alone is ill-suited to resolve issues presented by same sex marriage. However, what Justice Alito got wrong was his inability to see how “Section 3 of DOMA, not the issuance of marriage licenses to same sex couples, [was what] really disrupted the institution of marriage . . . creat[ing] two kinds of marital status when before there had only been one.”

    Media Commentary: Quoted in a Bankrate.com article, “DOMA decision to have big impact,” and appeared on a Chicago Tonight news segment (“Supreme Court Strikes Down DOMA“).


    Baker_Katharine thumbKatharine Baker, “Marriage and Uniformity — A Post-DOMA Reflection

    Case: United States v. Windsor (opinion)

    In this article, reposted from a Zócalo Public Square forum discussion, Professor Katharine Baker offers post-DOMA insights on “the next big question for marriage” and traces progressive forces’ vacillating relationship with concepts like “uniformity” and “consistency” regarding definitions of marriage.


    Harpalani_Vinay thumbVinay Harpalani, “Affirmative Action Survives — For Now

    Case: Fisher v. University of Texas (opinion)

    The Court’s decision in Fisher to vacate the Fifth Circuit ruling and remand the case—while not declaring the University’s race-conscious admissions policy to be unconstitutional—played out exactly as Professor Vinay Harpalani had recommended in his article Diversity within Racial Groups and the Constitutionality of Race-Conscious Admissions.* In this post, he claims a tentative victory for proponents of affirmative action but acknowledges that the fight to defend race-conscious admissions is not over.

    *Professor Harpalani has also written about the Fisher case in his article Fisher’s Fishing Expedition, in which he analyzes Fisher‘s oral argument.

    Media Commentary: Quoted in a New York Times article, “Lacking Definitive Ruling on Affirmative Action, Both Sides Claim Victory.”


    Haugh_Todd thumbTodd Haugh, “Thoughts on Peugh v. U.S.

    Case: Peugh v. United States (opinion)

    In this post, Professor Todd Haugh, a researcher of white collar crime and sentencing law, discusses various elements of the Peugh case, including the emergence of Justice Sotomayor as the Court’s foremost sentencing scholar and the projected rhetorical value of the opinion for future federal sentencing cases.


    Nahmod_Sheldon thumbSheldon Nahmod, “The Agency for International Development Case — Free Speech and Gov’t Funding

    Case: Agency for International Development v. Alliance for Open Society (opinion)

    It didn’t get that much attention, but the SCOTUS decision in Agency for International Development nevertheless represents an important development in First Amendment jurisprudence. Professor Sheldon Nahmod unpacks some of the Court’s history with the First Amendment before examining the free speech and government funding issues in question in this case.


    Nahmod_Sheldon thumbSheldon Nahmod, “Fisher and Shelby County: Two of a Kind

    Cases: Fisher v. University of Texas (opinion) and Shelby County v. Holder (opinion)

    Professor Sheldon Nahmod examines the similarities between the Fisher and Shelby County decisions; both reflect the Supreme Court’s increasing discomfort with affirmative action and its reluctance to defer to politically accountable bodies.


    Schmidt_Chris thumbChristopher Schmidt, “The Supreme Court’s Final Week: A Brief Assessment

    Cases: Fisher v. University of Texas (opinion), Holligsworth v. Perry (opinion), Shelby County v. Holder (opinion), United States v. Windsor (opinion)

    Professor Christopher Schmidt unpacks the outcomes in the big three issues of the Court’s final week of decisions: affirmative action, the Voting Rights Act, and gay marriage. Most of the opinions conformed to expectations, but there were also a few surprises.


    Shapiro_Carolyn thumbCarolyn Shapiro, “Arbitration uber alles in the Supreme Court

    Case: American Express Co. v. Italian Colors Restaurant (opinion)

    The decision in American Express is a “particularly bad [one],” writes Professor Carolyn Shapiro, “for consumers, employees, and small businesses—basically anyone who does business with large and powerful entities.” In this post, she provides detailed background on the technical aspects of the case before concluding that the decision—paradigmatic of the pro-business Roberts Court—effectively gives monopolists and powerful interests a road map to protect themselves from liability under antitrust laws, in this instance by perpetuating restrictive arbitration agreements.


    Shapiro_Carolyn thumbCarolyn Shapiro, “Democratic Legitimacy, Shelby County, and DOMA

    Cases: Shelby County v. Holder (opinion) and United States v. Windsor (opinion)

    Professor Carolyn Shapiro focuses on the different views of the democratic process on display in Shelby County and Windsor, found most notably in Justice Antonin Scalia’s seemingly contradictory rhetoric about democratic legitimacy and the scope of judicial review in the two cases.


    Shapiro_Carolyn thumbCarolyn Shapiro, “More Pro-Business Decisions at the Supreme Court

    Cases: Vance v. Ball State University (opinion) and University of Texas Southwestern Medical Center v. Nassar (opinion)

    Professor Carolyn Shapiro critiques more pro-business outcomes in the Vance and Nassar decisions. These decisions, both of which consider the exercise of Title VII rights, will make it harder for victims of discriminatory harassment to successfully litigate while, as in the American Express case, providing businesses road maps to insulate themselves from liability.

    Media Commentary: Quoted in a Reuters article, “Supreme Court Makes It Harder For Workers To Sue For Discrimination” (reprinted by the Huffington Post), and appeared on a Voice of Russia: American Edition radio segment (“Employers walk away with victory in Vance v. Ball State decision“).


    More Media Commentary

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    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

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