Erwin Chemerinsky

Erwin Chemerinsky’s Review of the 2008 Supreme Court Term

Matthew L.M. Fletcher

Here, published in the Green Bag.

An excerpt:

CTOBER TERM 2008 LACKED the blockbuster decisions
of the prior Term, in which the Court ruled that the
Second Amendment protects a right of individuals to
possess firearms apart from militia service,1 held a key
portion of the Military Commissions Act of 2006 to be an unconstitutional
suspension of the writ of habeas corpus,2 and concluded
that the death penalty for child rape is cruel and unusual punishment.
3 But the recently completed Term contained an exceptionally
large number of decisions that changed the law in areas that affect
lawyers and judges in their daily work. Strikingly, practically all of
these rulings – in areas such as the federal-court pleading standards
in civil cases, the scope of the exclusionary rule, and the protections
from employment discrimination – moved the law in a more conservative
direction.
There is an easy explanation

OCTOBER TERM 2008 LACKED the blockbuster decisions of the prior Term, in which the Court ruled that the Second Amendment protects a right of individuals to possess firearms apart from militia service, held a key portion of the Military Commissions Act of 2006 to be an unconstitutional suspension of the writ of habeas corpus, and concluded that the death penalty for child rape is cruel and unusual punishment. But the recently completed Term contained an exceptionally large number of decisions that changed the law in areas that affect lawyers and judges in their daily work. Strikingly, practically all of these rulings – in areas such as the federal-court pleading standards in civil cases, the scope of the exclusionary rule, and the protections from employment discrimination – moved the law in a more conservative direction.

Dean Chemerinsky on the Roberts Court

Matthew L.M. Fletcher

Dean Erwin Chemerinsky has posted “The Roberts Court at Age Three” on SSRN, forthcoming in the Wayne Law Review. Here is the abstract:

On June 26, 2008, the Supreme Court completed the third term of the John Roberts era. This article develops four themes concerning where the Supreme Court is right now and where it is likely to be going. First, so far, the Roberts Court has been characterized by its dwindling docket. Second, although it is called the Roberts Court out of tradition and deference to the Chief, in actuality it is the Anthony Kennedy Court. When it matters most, Kennedy is virtually always the deciding vote in 5-4 decisions. Third, this is the most conservative Court since the mid-1930s and is a Court that generally favors the government over claims of individual rights and business interests over those of employees and consumers. Fourth, the 2008 election is likely to determine whether the Court becomes more conservative or stays ideologically the same. It is unlikely that the Court will become more liberal during the next presidency or even the next five to ten years.

Erwin Chemerinsky on Michigan’s Prop 2

Matthew L.M. Fletcher

Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”

Here’s the introduction:

The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.

Let there be no doubt of its effects: it’s going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California Law Schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

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