Speech

Remarks to the American Bar Association on the global rule of law movement

Speech / By

Sandra Day O’Connor
I want to thank the American Bar Association for all of the important work that it does to promote the rule of law and for convening this really important meeting to advance that cause. Now why? It’s because the rule of law offers a basic guarantee of good government, of fair treatment and accountability. And these are the building blocks for a society that can effectively protect its citizens and help them reach their own potential. The discussions held here have underscored the urgency of promoting the rule of law, not just to realize the human potential, but also as part of an effective strategy to address some pressing social problems.
We have some critical challenges: combating terrorism, combating corruption, poverty, and the threat of pandemics. And all of these would be alleviated, in part, by a rule of law movement. But this can’t be a project of just one organization, or one profession, or one country. I think each of us has a stake in the rule of law, and we have to work together toward the goal. No one country has all the answers, certainly our country does not. You’ve learned that in the United States, there are current threats to the independence of our judiciary and the rule of law. And I think there are problems in most countries in that regard. So one of the important contributions that this gathering has made has been bringing together a wide range of different stakeholders in the concept of the rule of law, from the private sector, from

Law review article

Speeding Up to Smell the Roses

Law review article / By

SPEEDING UP TO SMELL THE ROSES

Stuart Banner•

They say SO’C is retiring. I don’t believe a word of it. Not deciding cases any more-I’ll accept that. But not retiring.

This is a woman who packs more activity into her life than anyone I have ever known. My strongest memories from clerking all involve trying to keep up with her. I think it was my second day on the job when she took us whitewater rafting. Then it was the National Gallery, Harpers Ferry, the National Arboretum, a picnic by the cherry blossoms, sailing on the Eastern Shore somewhere else every few weeks. My favorite was a behind-the-scenes tour of a U.S. Postal Service building where they were testing what were then futuristic mail-sorting machines. If you could get there from the Court within a couple of hours, SO’C got there, and she brought us along.

This wasn’t quite stopping to smell the roses. It was more like speeding up to smell the roses. And learning why they smelled the way they did. And how one could become a better rose-smeller. And what steps one should take to improve the quality of roses and the breadth of their distribution. And then moving on to the next set of flowers down the road. SO’C was interested in learning about everything and everyone.

Then there were all the people who came through the office. It seemed like every day there were visiting judges from some place or another, or one of my relatives who just happened to be popping in. (It’s funny how they never came to see me at any of

Law review article

Justice O’Connor’s Opinion in Feist Publications, Inc. v. Rural Telephone Service Co.: An Uncommon Though Characteristic Approach

Law review article / By

JUSTICE O’CONNOR’S OPINION IN FEIST PUBLICATIONS, INC. v.

RURAL TELEPHONE SERVICE CO.: An Uncommon Though Characteristic Approach*

By MARCI A. HAMILTON**

Justice O’Connor’s developed jurisprudence is most forcefully stated in her Establishment Clause and affirmative action cases.1 Probably few realize that in the last several years she also has become a force in the intellectual property area, especially the copyright arena. In the last three Terms, she has authored the Court’s major intellectual property opinion for that Term. Since 1985, she has authored four of the Court’s intellectual property opin ions. Given that the Court only grants one to two such cases each year, her contribution accounts for a substantial percentage of the Court’s intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend,4 and this year’s Feist Publications, Inc. v. Rural Telephone Service Co.5 cover a wide range of subjects: fair use of unpublished works, preemption of state law affecting pat ents, rights of derivative work assignees following the death of the author before the commencement of the renewal term, and the copyrightability of telephone book white pages. Of course, the full range of this rich assortment of topics cannot fairly be addressed in a 15-minute talk.

Law review article

Opinions with Style

Law review article / By

SUPREME COURT REPORT

Opinions With Style

Scholar says Court has embraced O’Connor’s ‘minimalism’

BY STEVE FRANCE

Justice Sandra Day O’Connor has often expressed a skepticism verging on contempt about using what she calls “grand, unified theory” as a way to decide cases.

Nonetheless, University of Chicago law professor Cass Sunstein has his own grand, unified theory to explain the justice’s style of judging. In a new book, he holds her out as the supermodel for “judicial minimalism,” the latest, hippest theory in the boutique.

A minimalist writes opinions with narrow holdings and shallow rationales, often reaching the result by balancing the relevant factors. This approach leaves important questions about broader social issues undecided for as long as possible, promoting democratic deliberation, Sunstein says.

Unlike judicial restraint, which says judges should hold off making big decisions, minimalism allows judges to assert themselves as long as they “do and say as little as is necessary in order to justify an outcome,” Sunstein says.

A maximalist, on the other hand, writes broad holdings founded on tightly reasoned theories even in cases that limit judicial power. Justice Antonin Scalia is the leading, but often frustrated, maximalist on the Court.

Now O’Connor’s style is the Court’s style, Sunstein argues in One Case at a Time: Judicial Minimalism on the Supreme Court. He calls its embrace of minimalism “the most striking feature of American law in

Law review article

O’Connor, J., Concurring

Law review article / By

Supreme Court Report

O’Connor, J., Concurring

BY ALEXANDER WOHL
Alexander Wohl is a freelance writer in Washington, D.C.

If Justice Oliver Wendell Holmes Jr. was “the great dissenter,” does that make Justice Sandra Day O’Connor “the great concurrer”?

In delicate areas of the law it has become almost commonplace for 5-4 rulings by the Court’s conservative bloc to be embroidered-and often limited-by an O’Connor concurrence. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court’s ideological spectrum. In this sense she has assumed or at least draped over one shoulder the moderate mantle of retired Justice Lewis F. Powell Jr.

Steven Katlett, who clerked for O’Connor two years ago and is now an associate with Jones, Day, Reavis & Pogue in Columbus, Ohio, thinks that “she appreciates [Powell’s] views and for this reason, as well as her general philosophy, she won’t sign on to wholesale revamping of Warren and Burger Court decisions.”

Another former O’Connor clerk states that O’Connor “is concerned about judicial activism, not in a political sense, but in the real sense that the Court should not jump into an issue just because it is controversial, but should try to be somewhat stable and consistent until it is really confronted with a situation where it has to make a change.”

In Pembauer v. City of Cincinnati (475 U.S. 469 [1986]), for

Law review article

Rethinking Feminist Judging

Law review article / By

Rethinking Feminist Judging

MICHAEL E. SOLIMINE* SUSAN E. WHEATLEY**

INTRODUCTION

For nearly two centuries no woman served on the United States Supreme Court and very few served on either the lower federal courts or state courts. Today, Sandra Day O’Connor and Ruth Bader Ginsburg are members of the

U.S. Supreme Court, and burgeoning numbers of female judges have joined them on other federal and state courts.1 Contributing to this change, the Clinton administration is appointing unprecedented numbers of women to the lower federal courts.2

The increasing number of female judges, not coincidentally, has been accompanied by questions about whether female judges and female judging are distinctive in some way, and by calls for further increasing the number of female judges. Some writers assert that female judges approach cases and make decisions in ways that their male colleagues are unable or unwilling to do. According to these writers, most if not all female judges engage in contextual analysis, consider a broad range of factors, and tie their decisions less to arbitrary rules than to flexible standards.3 Drawing on these empirical

Copyright © 1995 by Michael E. Solimine & Susan E. Wheatley. All Rights Reserved.

* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. J.D., 1981, Northwestern University; B.A., 1978, Wright State University.

** Partner, Taft, Stettinius & Hollister, Cincinnati, Ohio. J.D., 1986, Northwestern University; B.A., 1982, Yale University.

Law review article, Speech

Altered States: Federalism and Devolution at the “Real” Turn of the Millennium

Law review article, Speech / By

Sandra Day O’Connor Mr. Vice Chancellor and Lord Chief Justice, and my lord millet and Sir David and Lady Williams, Professor Smith and distinguished guests, friends of Cambridge.

It is my great honour and pleasure to deliver the inaugural Sir David Williams Lecture. Sir David is among the most distinguished members of the legal academy not only in this country, but around the world. His teaching career began at the University of Nottingham, after which he taught at the University that, I am told, is known affectionately in these parts as “the other place.” Sir David then joined the Law Faculty at Cambridge, later serving as the Rouse Ball Professor of English Law and President of Wolfson College. Sir David has been a path-breaker in the fields of constitutional and administrative law. His books, “Not in the Public Interest: The Problem of Security in Democracy”, and “Keeping the Peace: The Police and Public Order”, are landmarks in his fields and, I suspect, will be for a long time to come.

Sir David’s impact, however, is not confined to the life of the mind, but extends also to the world of public affairs. While enhancing our understanding of democracy, he has demonstrated a passionate concern for the quality of life in this democracy through his public service. He has served on the Royal Commission on Environmental Pollution, the Council of Tribunals, the Clean Air Council, and a number of other bodies whose work is significant. Sir David has also excelled as a leader

Law review article, Speech

The Supreme Court and the Family

Law review article, Speech / By

REMARKS

THE SUPREME COURT AND THE FAMILY

Honorable Sandra Day O’Connor*

It is a true pleasure to be here at the University of Pennsylvania Law School’s sesquicentennial celebration and at the Family Law Symposium. The celebration makes me feel young-by comparison. It is appropriate that one of the centerpieces of your celebration should be this symposium on family law. The family is at the heart of American life, as well as American law. As Justice Powell wrote on behalf of the Court in Moore v. City of East Cleveland, “‘the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”1

It is this deep commitment to the family that has led so many of you to dedicate your careers to the development of family law. Family law poses special challenges and requires judges and attorneys, as well as other professionals like psychologists and social workers, to study and work together. And you must work together often-in 1998 alone, approximately five million cases involving domestic matters were filed in state courts.

The ultimate goal, of course, is to maintain and improve a legal system that protects and respects the family, both as a unit and as a group of individuals with their own rights and interests. It is not an easy task, particularly in light of the momentous changes

Law review article

Sandra Day O’Connor: Justice, Ambassador, and Role Model

Law review article / By

SANDRA DAY O’CONNOR: JUSTICE, AMBASSADOR, AND ROLE MODEL

Over the last several years, the Supreme Court’s role has subtly changed, making Justice Sandra Day O’Connor more important to the Court than ever. Whereas the Court previously had mandated jurisdiction over certain cases, it now hears only those cases which the members of the Court deem worthy of consideration. As the press has noted, the number of Supreme Court cases has declined rather dramatically. The reasons for this decline are complex and, to some degree, impenetrable or at least unprovable. Part of the decline in the caseload, though, must be attributed to the fact that some of the previously “necessary” cases did not really require Supreme Court intervention. There has also been an apparent change in the philosophy of certiorari jurisdiction. The Court seems to wait longer now than it did before. But for exceptional cases, circuit splits need to be significant before the Court will grant certiorari on a particular issue. The Court seems to have adopted the attitude of a referee who waits until the players definitely require intervention before taking action. When a court behaves in this manner, it is tempting for its members to believe that they must issue rules that will provide guidance in every potentially related case. For some, bright-line rules and predictability become of paramount importance. The Court’s mission shifts on the margins from the common law model of resolving individual disputes to the civil