The Top 10 Most Frequently Accessed United States Supreme Court Decisions at LexisNexis : Significance and Case Commentaries

What United States Supreme Court decisions actually get the most action in legal circles?

TechnoLawyer in its July 1, 2009 TechnoRelease® features the LexisNexis top 10 most frequently accessed United States Supreme Court decisions.

The case citations below are from LexisOne, but the commentary is by LawPundit, linking to selected other websites which discuss these cases. (The full text of US Supreme Court decisions from the year 1781 to the present – are freely accessible at LexisOne, but registration (free) is required.)

The Top 10 cases at LexisNexis are:

1. Terry v. Ohio (freedom from unlawful searches and seizures: the police right to frisk without a warrant was affirmed)
392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889; 1968 U.S. LEXIS 1345; 1968 U.S. LEXIS 1345; 44 Ohio Op. 2d 383
(see LexisOne, or e.g. Cornell U)

As written about Terry v. Ohio at

Terry v. Ohio expanded the right of police officers to “stop and frisk” individuals whom they deem to be suspicious….

By an 8-1 vote, the Supreme Court upheld the validity of the stop and frisk practice….

[T]he “Terry type search” became the standard by which police officers could measure the lawfulness of searches performed without obtaining a warrant.

2. Tinker et al. v. Des Moines Independent Community School District et al. (freedom of speech: the right of students to wear peace sign armbands in school was affirmed)
393 U.S. 503; 89 S. Ct. 733; 21 L. Ed. 2d 731; 1969 U.S. LEXIS 2443; 49 Ohio Op. 2d 222
(see LexisOne, or e.g. FindLaw)

The ACLU writes:

On February 24, 1969 the Court ruled 7-2 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Court ruled that the First Amendment applied to public schools, and school officials could not censor student speech unless it disrupted the educational process. Because wearing a black armband was not disruptive, the Court held that the First Amendment protected the right of students to wear one.

3. Bell Atl. Corp. v. Twombly (parallel conduct: without further evidence of agreement, the mere fact of parallel conduct does not constitute a conspiracy under the Section 1 antitrust provision of the Sherman Act)
550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929; 2007 U.S. LEXIS 5901; 75 U.S.L.W. 4337; 2007-1 Trade Cas. (CCH) P75,709; 68 Fed. R. Serv. 3d (Callaghan) 661; 20 Fla. L. Weekly Fed. S 267; 41 Comm. Reg. (P & F) 567
(see LexisOne, or e.g Supreme Court of the United States (.pdf))

Scott Dodson at the Virginia Law Review writes in Pleading Standards After Bell Atlantic Corp. v. Twombly:

To state a Section 1 claim … the plaintiff must allege facts “plausibly” suggesting the existence of a conspiracy. This “plausibility” standard, while not a “probability” standard, requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement….

The Court … explained that Conley v. Gibson’s requirement that the complaint “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” is critical. “[G]rounds,” the Court wrote, “requires more than labels and conclusions, and a formulaic recitation of the elements of a case of action will not do.” In short, some factual allegations must accompany the elements of a claim.

4. Deborah Morse v. Joseph Frederick (freedom of speech: student speech or action that intrudes upon the work of the schools can be limited by school authorities without violating the free speech rights of students)
551 U.S. 393; 127 S. Ct. 2618; 168 L. Ed. 2d 290; 2007 U.S. LEXIS 8514; 75 U.S.L.W. 4487; 20 Fla. L. Weekly Fed. S 431
(see LexisOne, or e.g. SCOTUS blog)

C. Paul Smith writes at his blog:

[T]he Supreme Court ruled in Morse v. Frederick … that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down….

The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct.

Please note, by the way, as can be read at Wikipedia, that “A bong, also commonly known as a water pipe, is a smoking device, generally used to smoke cannabis, tobacco, or other substances“, and that a “bong hit” according to the Urban Dictionary means “to enhale smoke from a bong“.

I have more than a cursory interest in this subject, having edited John Kaplan’s pioneer book: Marijuana: The New Prohibition.

5. Gonzales v. Raich (Commerce Clause, powers of Congress and the federal government: federal U.S. authority permits prohibition of state-allowed local cultivation of marijuana)
545 U.S. 1; 125 S. Ct. 2195; 162 L. Ed. 2d 1; 2005 U.S. LEXIS 4656; 73 U.S.L.W. 4407; 18 Fla. L. Weekly Fed. S 327
(see LexisOne, or e.g.

Donald C. Arnold, Chief Counsel of the General Counsel Division of the Attorney General’s office in the Department of Justice of the State of Oregon, wrote as follows about Gonzales v. Raich:

1. Does Gonzales v. Raich, 545 U.S. ___ (2005), 125 S. Ct. 2195, Slip Op. 03-1454, invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?

No. Raich addresses a narrow constitutional question concerning the power of the federal government to regulate intrastate activity under the Commerce Clause. It does not invalidate the Oregon Medical Marijuana Act (Act), ORS 475.300 to 475.346.

Raich holds that Congress has the authority to prohibit the wholly local cultivation of marijuana even if it is used for medicinal purposes pursuant to California law. Precipitating the lawsuit, federal law enforcement officials in California had seized and destroyed an individual’s cannabis plants, after county officials had concluded that her cultivation of the plants and use of marijuana was lawful under California’s medical marijuana law. The plaintiffs in Raich sued to have enforcement of the Controlled Substances Act (CSA), 21 USC § 801 et.seq., the law under which the federal officials had acted, declared unconstitutional when applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law. Raich, slip op at 12. Because the CSA classifies marijuana as a Schedule 1 controlled substance, with no “currently accepted medical use,” its manufacture, distribution or possession is a federal crime. Id. at 11.

The Court concluded that the CSA, as applied to the circumstances of the case, is a valid exercise of Congress’ power under the Commerce Clause because Congress had a rational basis upon which to conclude that production of marijuana for local, personal consumption “has a substantial effect on supply and demand in the national market.” Raich, slip op at 16, 19. According to the Court’s analysis, there being a number of states authorizing the medical use of marijuana only strengthens its conclusions as to congressional power: “Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.” Id. at 30.

However, Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws. Additionally, the case does not oblige states to enforce federal laws. Because these issues of the relationship between federal and state authority were not relevant to the case, they are not addressed in the Court’s opinion.

6. Campbell v. Acuff-Rose Music (Freedom of Speech and Copyrights: Fair Use, Commercial Use, Transformative Use, Parody – a transformative commercial parody – not just a take-off – of a copyright-protected work “could” be permissible as fair use)
510 U.S. 569; 114 S. Ct. 1164; 127 L. Ed. 2d 500; 1994 U.S. LEXIS 2052; 62 U.S.L.W. 4169; 29 U.S.P.Q.2D (BNA) 1961; Copy. L. Rep. (CCH) P27,222; 22 Media L. Rep. 1353; 94 Cal. Daily Op. Service 1662; 94 Daily Journal DAR 2958; 7 Fla. L. Weekly Fed. S 800
(see LexisOne, or e.g. UCLA Law & Columbia Law School)

As written at the National Coalition Against Censorship (NCAC):

Twenty-five years after the release of Roy Orbisonís song, “Oh Pretty Woman”, 2 Live Crew wrote a vulgar parody satirizing the famous rock ballad. Acuff-Rose Music, Inc., the owner of the copyright for the song, brought an action against Luther Campbell, the leader of the band 2 Live Crew, for copyright infringement. At issue in this case was the scope of the fair use provision of the Federal Copyright Act, which specifically permits unauthorized use of a work to criticize and comment upon the work. Ultimately, the Supreme Court examined whether 2 Live Crew’s commercial parody was indeed a fair use of the original song within the meaning of the Federal Copyright Act., “the unofficial homepage” of “The 2 Live Crew” writes:

Campbell v. Acuff-Rose Music, Inc. is probably the seminal case for the modern application of the fair use doctrine. After years of neglect languishing in the back waters of intellectual property, the fair use doctrine received the spotlight from the Supreme Court in 1994. The lightning rod was 2 Live Crew (no stranger to Constitutional controversy) and their allegedly parodic use of the “Pretty Woman” song….

7. Roe v. Wade (Abortion and the Constitution: Abortion is a Constitutional right, derived from the right of privacy)
410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
rehearing denied, 410 U.S. 959, 35 L. Ed. 2d 694, 93 S. Ct. 1409, 1973 U.S. LEXIS 3282
(see e.g. Wikipedia)

According to the Roe decision, there is a constitutional right to privacy, guaranteed by the Due Process Clause of the Fourteenth Amendment, which disallowed most existing state and federal restrictions on abortion in the United States. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history.”

As written at the website of the ACLU:

[T]he landmark abortion rights case, Roe v. Wade … challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy. Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became “viable” (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health.

8. Celotex Corp. v. Catrett (Federal litigation: Summary judgment and evidentiary support for claims : Plaintiff has the burden of showing it has sufficient evidence to proceed with the case)
477 U.S. 317; 106 S. Ct. 2548; 91 L. Ed. 2d 265; 1986 U.S. LEXIS 118; 54 U.S.L.W. 4775; 4 Fed. R. Serv. 3d (Callaghan) 1024

Adam Steinman of the University of Cincinnati College of Law, in The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, Washington & Lee Law Review, Vol. 63, 2006, U of Cincinnati Public Law Research Paper No. 05-16, available at SSRN, writes in the Abstract of that article:

Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court’s most current instruction on how burdens are allocated between the party seeking and the party opposing judgment.”

The Celotex trilogy of cases regarding the standard to be applied for summary judgment is nicely described by the High Court of American Samoa Trial Division :

This standard has been articulated by the Supreme Court in what is commonly referred to as the Celotex trilogy. These cases stand for the proposition that an inadequate showing cannot defeat a moving party’s competent motion for summary judgment. In Celotex Corp. v. Catrett … the court stated ” …the burden on the moving party may be discharged by. .. pointing out. ..that there is an absence of evidence to support the nonmoving party’s case.” In Anderson v. Liberty Lobby, 91 L.Ed.2d 202, 212 (1986) (public figure libel action), the court defined a genuine issue of dispute as one in which ” …a reasonable jury could return a verdict for the nonmoving party. ” The court elaborated: ” As [cited cases] indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is not significantly probative, summary judgment may be granted….” And in Matsushita Elec. Ind. v. Zenith Radio, 89 L.Ed.2d 538, 552 (1986) (antitrust conspiracy case), the court stated: “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’….” [emphasis added]

Since the Celotex trilogy, the above standard has been used throughout the federal system.

9. Anderson v. Liberty Lobby, Inc. (see the Celotex trilogy above)
477 U.S. 242; 106 S. Ct. 2505; 91 L. Ed. 2d 202; 1986 U.S. LEXIS 115; 54 U.S.L.W. 4755; 4 Fed. R. Serv. 3d (Callaghan) 1041; 12 Media L. Rep. 2297
(see LexisOne, or e.g.

10. Burlington Industries v. Ellerth (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq: question of vicarious employer liability for sexual harassment of employee by supervisor)
524 U.S. 742; 118 S. Ct. 2257; 141 L. Ed. 2d 633; 1998 U.S. LEXIS 4217; 66 U.S.L.W. 4634; 77 Fair Empl. Prac. Cas. (BNA) 1; 73 Empl. Prac. Dec. (CCH) P45,340; 98 Cal. Daily Op. Service 5029; 98 Daily Journal DAR 6991; 1998 Colo. J. C.A.R. 3405; 11 Fla. L. Weekly Fed. S 692
(see LexisOne, or e.g. FindLaw)

The Corporate Compliance Prof Blog first of all quotes the decision in Ellerth:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee….

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence…. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

and then writes:

So, here is a quick summary of employer vicarious liability under Ellerth:

  • The plaintiff carries her burden by proving that a supervisor committed hostile environment sexual harassment.
  • If the employee proves that she suffered a tangible employment action, the employer is vicariously liable.
  • If the employee did not suffer a tangible employment action, the employer may avoid vicarious liability by pleading and proving the two element affirmative defense.

Read the full posting Case Analysis — Sexual Harassment — Ellerth and Faragher Affirmative Defense at Corporate Compliance Prof blog.

See the full Top 10 list at LexisNexis.

Genetic Patent Battle in the Biotech Sector Intensifies : The ABA Law Journal Magazine Features Law and Technology in "Wrangling Genes"

Brendan L. Smith at the ABA Journal online Law News Now in the section on Science & Technology Law has a posting titled Law Trails Behind as Disputes Over Genetic Patents Intensify.

Read his full feature article in the ABA Journal magazine July 2009 issue at Wrangling Genes: As the law changes and new medical frontiers open, the dispute over genetic patents intensifies.

Interesting in this connection is the following observation from Patent Baristas:

Gene Patent Fearmongering

The Slate ran an article about the evils of patent human genes. “Patents are meant to protect inventions, not things that exist in nature like genes in the human body,” quoting Christopher Hansen, an attorney for the American Civil Liberties Union in regards to their lawsuit to have gene patents declared unconstitutional. The Patent Office estimated that about 52,800 patents have been granted related to genes, fragments of genes, genetic processes and bits of DNA as small as a single letter change in the genetic code.

Recall that LawPundit has posted previously and quite definitely about the bad judgement involved in permitting the biotech patenting of human genes:

In re Kubin : Hitting the NAIL on the Head : Sequencing Poor Federal Circuit Court Decisions out of the Biotechnology Patent Genome via KSR and/or Bilski Reasoning

Federal Circuit affirms In re Kubin and puts sensible limits on Biotechnology Patents pursuant to the KSR obviousness standard, thus negating Deuel (and see the spirited comments and answers thereto at LawPundit II)

Patent Baristas Comments Extensively on In Re Kubin : The Use of Conventional Techniques to Arrive at an Obvious Result Does Not Make an Invention