Digital Commons Network^™

Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski

Michigan Law Review

Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …

Beyond Qualified Immunity, Fred O. Smith Jr.

Michigan Law Review Online

I never watched the video. The descriptions themselves have always felt like enough. Traumatizing enough. Invasive enough. George Floyd, father of two, laying on the ground, as an unfazed officer kneeled on his neck for at least eight minutes and forty-six seconds. He pleaded for his life and cried out to his deceased mother until he met his inevitable death. His name should be said for the record before saying almost anything else. The recording of the chilling final minutes of his life is, in all probability, one of the impetuses for this multi-journal Reckoning and Reform Symposium.

The Permissibility Of Acting Officials: May The President Work Around Senate Confirmation?, Nina A. Mendelson

Articles

Recent presidential reliance on acting agency officials, including an acting Attorney General, acting Secretaries of Defense, and an acting Secretary of Homeland Security, as well as numerous below-Cabinet officials, has drawn significant criticism from scholars, the media, and members of Congress. They worry that the President may be pursuing illegitimate goals and seeking to bypass the critical Senate role under the Appointments Clause. But Congress has authorized—and Presidents have called upon—such individuals from the early years of the Republic to the present. Meanwhile, neither formalist approaches to the constitutional issue, which seem to permit no flexibility, nor current Supreme Court …

The Elephant Problem, Richard Primus

Reviews

In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central …

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a …

Understanding State Agency Independence, Miriam Seifter

Michigan Law Review

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Touro Law Review

No abstract provided.

The Meaning Of "Under Color Of" Law, Steven L. Winter

Michigan Law Review

The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is "the State" is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to …

Public Official's Qualified Immunity In Section 1983 Actions Under Harlow V. Fitzgerald And Its Progeny: A Critical Analysis, Stephen J. Shapiro

University of Michigan Journal of Law Reform

Part I of this Article discusses the development of immunities in section 1983 actions. Part II examines the application of Harlow and its progeny to a variety of situations. This discussion shows that broadened qualified immunity produces anomalous results under some circumstances by granting immunity to officials who have acted in a clearly culpable manner. Part III discusses the appropriateness of the Harlow standard and determines that it is neither supported by the legislative history of section 1983 nor by legitimate policy concerns. Finally, Part IV proposes several solutions that would protect deserving public officials from personal damage liability without …

Affirmative Duty And Constitutional Tort, Michael Wells, Thomas A. Eaton

University of Michigan Journal of Law Reform

This Article argues that the Bowers principle is wrong. It examines the issues of doctrine and policy that bear on the affirmative duty question in constitutional tort and contends that affirmative duties may be imposed even though constitutional rights are generally negative in character, as a matter of federal constitutional common law. It ·develops a foundation in doctrine and policy, so far lacking in the opinions, to support these duties and to place proper limits upon them.

Part I identifies issues of tort policy that arise in affirmative duty cases, while Part II addresses the distinctive problems that come up …

The Constitutionality Of The Special Prosecutor Law, Donald J. Simon

University of Michigan Journal of Law Reform

This Article explores the constitutional questions posed by the special prosecutor law and concludes that the law is constitutional. Part I examines the political setting that gave rise to the special prosecutor provisions and discusses the intent of the drafters. Part II explains the precise manner in which the provisions operate and surveys the recent experience under the law. Finally, part III evaluates the constitutional objections raised by critics of the legislation.

Congressional Power Under The Appointments Clause After Buckley V. Valeo, Michigan Law Review

Michigan Law Review

This Note examines the constitutional power of Congress to control the selection of government officers. It first discusses the article II grant itself and concludes that the Court in Buckley correctly interpreted that provision to prohibit direct appointment by Congress of officers who are found to possess "significant authority." The Note then explores possible means not explicitly foreclosed in Buckley by which Congress might influence such appointments and argues that these alternatives are restricted by the same constitutional principles that prohibit direct congressional appointments.

Judicial Supremacy Re-Examined: A Proposed Alternative, G. Sidney Buchanan

Michigan Law Review

A citizen critic recently expressed to me his bitter opposition to the Warren Court's decisions on school prayer and school desegregation. If this critic were elected governor of a state or placed in some other position of governmental authority, he would almost certainly use his power to block public school desegregation and to encourage prayer reading in the public schools. Conceding that our critic would be acting controversially in so using his power, would he be acting unconstitutionally? This is the question which this Article will attempt to answer. More generally, this Article will consider the extent to which a …

Mr. Justice Brennan And The Condition Of Unconstitutional Conditions, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Are Too Many Executive Officers Elective?, Bradley M. Thompson

Articles

We propose very briefly to call attention, to so much of the present constitution of Michigan as has to do with the executive department, and to consider the methods which the people have adopted for selecting those public servants whose official duty it is to enforce the law, to maintain public order and protect private rights.

Power To Appoint To Office--Its Location And Limits, Floyd R. Mechem

Articles

At no other time in the judicial history of this country, if the evidence of the reported cases is to be relied upon, have there been so many and so bitter contests over all of the questions growing out of the title to public offices, as during the last ten or twelve years. This is undoubtedly largely accounted for by the fact that within that period a large number of the states have put in operation radically changed methods of conducting elections, based upon or practically incorporating what is popularly known as the Australian ballot system. In making these changes, …