Digital Commons Network^™

Racial Revisionism, Shaun Ossei-Owusu

Michigan Law Review

A Review of The Enigma of Clarence Thomas. by Corey Robin.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Six Overrulings, Andrew Koppelman

Michigan Law Review

John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …

Griggs At Midlife, Deborah A. Widiss

Michigan Law Review

Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …

A Model For Fixing Identification Evidence After Perry V. New Hampshire, Robert Couch

Michigan Law Review

Mistaken eyewitness identifications are the leading cause of wrongful convictions. In 1977, a time when the problems with eyewitness identifications had been acknowledged but were not yet completely understood, the Supreme Court announced a test designed to exclude unreliable eyewitness evidence. This standard has proven inadequate to protect against mistaken identifications. Despite voluminous scientific studies on the failings of eyewitness identification evidence and the growing number of DNA exonerations, the Supreme Court's outdated reliability test remains in place today. In 2012, in Perry v. New Hampshire, the Supreme Court commented on its standard for evaluating eyewitness evidence for the first …

Plea Bargaining And The Right To Counsel At Bail Hearings, Charlie Gerstein

Michigan Law Review

A couple million indigent defendants in this country face bail hearings each year and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held …

Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum

Michigan Law Review

A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …

Does History Defeat Standing Doctrine?, Ann Woolhandler, Caleb Nelson

Michigan Law Review

According to the Supreme Court, the Federal Constitution limits not only the types of matters that federal courts can adjudicate, but also the parties who can bring those matters before them. In particular, the Court has held that private citizens who have suffered no concrete private injury lack standing to ask federal courts to redress diffuse harms to the public at large. When such harms are justiciable at all, the proper party plaintiff is the public itself, represented by an authorized officer of the government. Although the Court claims historical support for these ideas, academic critics insist that the law …

Yale, Marc Spindelman

Michigan Law Review

Yale does have, as Nancy King has said, a story for every occasion. Many of my favorites - and I definitely have my share - reflect Yale's gaudium certaminis: his "joy of battle" in Gerald Gunther's helpful translation. Some of Yale's battles I have only heard or read about. A few of the more memorable ones from over the years include Yale's confrontations with Glanville Williams, Fred Inbau, Joe Grano, John Kaplan, James Vorenberg, Robert Bork, Malcolm Wilkey, Edward Barrett, and Yale's former teacher Herbert Wechsler. And let's not forget the numerous law-enforcement officials Yale caught in his sights at …

Yale Kamisar: Warrior Scholar, Francis A. Allen

Michigan Law Review

My association with Yale Kamisar dates back to the 1950s. At that time I became aware of the interesting publications of a young faculty member at the University of Minnesota. The articles were well done, most of them dealing with the Supreme Court's notable expansion of constitutional doctrine relating to criminal procedure, then at full tide, a field in which I also was writing. In addition, Yale had published a remarkable article on the subject of euthanasia, impressive for the thoroughness of its research and the clarity and force of its argument. Fortunately, I decided to write to Yale and …

Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown

Michigan Law Review

William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal …

Race, Rights, And Remedies In Criminal Adjudication, Pamela S. Karlan

Michigan Law Review

Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice, and three of those - Powell v. Alabama, Moore v. Dempsey, and Bailey v. Alabama - were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, …

Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis

Michigan Law Review

Criminal law scholars have pined for a substantive constitutional criminal law ever since Henry Hart and Herbert Packer first embraced the notion in the late 1950s and early 1960s. To this day, scholars continue to search for a theory fhat giv:es content to, in Hart's words, "the unmistakable indications that the Constitution means something definite and spμiething serious when it speaks of 'crime.'" To their dismay, the Supreme Court has - with two exceptions - seemingly resisted the notion. The two exceptions are familiar. First came the 1957 case of Lambert v. California, in which the Court came as close …

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker

Michigan Law Review

To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.

The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward …

Improving Constitutional Criminal Procedure, Welsh S. White

Michigan Law Review

A Review of The Failure of the Criminal Procedure Revolution by Craig M. Bradley

Chopping Miranda Down To Size, Michael Chertoff

Michigan Law Review

A Review of Confessions, Truth, and the Law by Joseph D. Grano

Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.

Legitimating Death, Louis D. Bilionis

Michigan Law Review

This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.

To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …

The Care And Feeding Of The United States Constitution, Abner J. Mikva

Michigan Law Review

A Review of The Intelligible Constitution by Joseph Goldstein

Capital Punishment's Future, Welsh S. White

Michigan Law Review

A Review of Capital Punishment in America by Raymond Paternoster