Setting Congress Up to Fail

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction.

Causation and Harm in a Multicomponent World

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm must be specifically attributable to the infringing feature. In Apple IV, the Federal Circuit noted that proving causation was "nearly impossible" in these multicomponent cases. So it decided to water down the causal nexus requirement saying that it was enough for Apple to show that the infringing features were "important"and customer sought these particular features. This lower standard is an ill-advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup. My critique takes two parts. First, I argue that a single infringing feature rarely, if ever, "causes" consumers to buy the infringer’s multicomponent products. The minor features at issue in Apple IV illustrate this point vividly. Thus, the new causal nexus standard does not accurately reflect how causation and harm operate in a multicomponent world. Second, I explain why the court was so willing to accept such little evidence of real injury. It improperly applied notions of traditional property law to patents. Specifically, the court viewed patent infringement as harmful regardless of any concrete consequences. This view may resonate for other forms of property where an owner's rights are paramount and a trespass is considered offensive in and of itself. But the same concepts do not apply to patent law where the Supreme Court has consistently said that private interests must take a back seat to the public good. Based on these principles, the courts should restore the "causal nexus" requirement and not presume causation.

Opinions filed by the commissioners acting under the VII. article of the Treaty of Amity Commerce and Navigation between Great Britain and the United States of America : manuscript, 1797-1799

Opinions concerning the 7th article of the treaty.

Letter from Daniel Upton to James Savage, 1799 September 29

Daniel Upton wrote this letter from Machias, Maine on September 29, 1799; it is addressed to James Savage, who was then a freshman at Harvard College. In the letter, Upton advises Savage to study ardently, avoiding the temptation to procrastinate. He thanks Savage for having sent him a copy of "Mr. Lowell's oration" and sends greetings to a Mr. Holbrook and Mr. Jones. He also passes along the fond wishes of those in Machias who know Savage, including John Cooper and his wife, Phineas Bruce and his wife, and Hannah Bruce (Upton's future wife). Upton explains that he is writing the letter in a hurry because he is sending it on board with Captain Merryman, who is about to set sail, presumably for Boston.

Papers of Theophilus Parsons, 1778-1811

Bill to Timothy T. Ford for legal services performed from September 1778 to June 1779; letter to Judge Thomas Dawes regarding a probate case (1802); Parsons' report and opinion in the case of the proprietors of the Kennebec Purchase v. Boulton, et al. (1807); a statement of facts in the case of Brooks v. Dorr (1807); a note to Joseph Allen regarding a case (1810); and a letter to Foster regarding the Massachusetts Circuit Court of Common Pleas (1811).

Correspondence with Judge George Thatcher, 1789-1815

Correspondence from Tyng, who resided in Newburyport and Boston, to Congressman George Thacher of Maine, touching on a variety of political topics such as the judiciary act of 1789, the make-up of the United States Supreme Court, and the judges of the Massachusetts court system.

Read's Delaware cases, 1793-1794

Contains legal cases transcribed by George Read containing accounts of cases before the Delaware Supreme Court.

Notice of trial in the case of Jonathan Fish [et al.] v. William Betts, 12 April 1774

Document addressed to Thomas Hicks (attorney for the defendant) informing him that Scott (attorney for the plaintiff) intends to bring the case to trial "at the next Supreme Court of Judicature to be held for the Province of New York." Signed by Scott.

Letter, 17 January 1795

Letter written from York to an unnamed correspondent, in which Sewall discusses political matters, court and legislative business, and news from a recent visit to Boston. With extensive comments on the nature of winter weather in New England.

Lawyer's case book containing notes of cases adjudged and determined in the courts of Delaware, 1793-1796

Lawyer's case book containing notes on cases before the Delaware Supreme Court and Delaware Court of Common Pleas. Contains information on the cases and judgements.

Deed to Joseph Woodward, 29 November 1786

Deed for a parcel of land in Braintree, Massachusetts.

Notes on cases in Lennox and Worcester, 1789

Contains notes on cases before the Supreme Court in Lennox and Worcester, Massachusetts relating to counterfeiting, libel, and fraud.

Judge's notes on cases heard in Lincoln County (Maine), 1788-1789?

Includes notes and summaries of witnesses' testimony on cases involving contracts and land disputes. One pamphlet bears note "Lincolns. July 7th 1789. Pownalboro. Supreme Court." Pownalborough Court House is in Dresden, Maine, which succeded from Pownalborough. In 1804, the town Pownalborough was renamed Wiscasset.

Miscellaneous legal documents, 1751-1840

Subpoenas for the sheriff of Philadelphia County to individuals to serve for actions relating to trespass on a case, ejectment, and replevin of three negro slaves.