Law Commons^™

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 …

Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Michigan Law Review

The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile's head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain's 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, …

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review

Michigan Law Review

The questions of the extent of an attorney's right to claim the privilege against self-incrimination during bar disciplinary proceedings and of the consequences of the exercise of the privilege has created a sharp division of opinion. The privilege against self-incrimination necessarily involves a conflict between the public's interest in disclosure and the individual's interest in privacy and nondisclosure. However, the conflict is exacerbated when the individual claiming the privilege is entrusted with important public responsibilities.

Immunity Under The Speech Or Debate Clause For Republican And From Questioning About Sources, Michigan Law Review

Michigan Law Review

Gravel v. United States, which arose out of Senator Mike Gravel's attempt to publicize the Pentagon Papers, concerned the scope of the immunity conferred upon a legislator and his aide under article I, section 6, of the United States Constitution. This provision, commonly called the "speech or debate clause," provides that "for any Speech or Debate in either House, [United States Senators or Representatives] shall not be questioned in any other Place." Gravel is one of the few Supreme Court interpretations of this clause.

Attorneys--Self-Incrimination--The Attorney's Privilege Against Self-Incrimination In A Disbarment Proceeding, Michigan Law Review

Michigan Law Review

A state court has jurisdiction to deal with the alleged misconduct of attorneys practicing before it either explicitly by statute or by ' virtue of its power to control the conduct of its own affairs. Indeed, it can suspend or disbar an attorney who fails to maintain the standard of conduct established for members of the legal profession. One aspect of such a standard is that an attorney is bound not to obstruct the administration of justice, a duty which imposes upon him an affirmative obligation to cooperate with the courts. The question frequently arises whether, in order to satisfy …

Constitutional Law - Privilege Against Self-Incrimination - Danger Of Prosecution In Other Jurisdictions, George R. Haydon, Jr.

Michigan Law Review

Defendant, a witness called by the New Hampshire attorney general in an investigation of subversive activities, was granted statutory immunity in New Hampshire from criminal prosecution which might arise from his testimony and was ordered to testify. Since any disclosures would create serious danger of prosecution by the United States and Massachusetts, whose agencies were also investigating his activities, defendant refused to testify despite the grant of immunity, invoking the privilege against self-incrimination guaranteed by the state constitution. He was found guilty of contempt, subject to his exceptions regarding the constitutionality of the immunity statute. On hearing before the state …

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

At the last term the United States Supreme Court in Ullmann v. United States upheld the constitutionality of paragraph (c) of a federal act of August 1954 which seeks to compel the testimony of communists and other political deviants. Paragraph (c) relates to witnesses before federal courts and grand juries. The Court specifically left open the question of the validity of paragraphs (a) and (b) relating to congressional witnesses. Justice Frankfurter delivered the Court's opinion. Justice Douglas, with the concurrence of Justice Black, wrote a dissent.

It is our purpose to consider the background, history and terms of this compulsory …

Constitutional Law - Civil Rights Acts - Civil Liability Of State Officials Acting Withing Their Discretionary Powers, Charles B. Renfrew S.Ed.

Michigan Law Review

Plaintiff was adjudged mentally ill by a county probate judge and ordered committed to a state mental hospital in November 1950. The commitment was made pursuant to a petition made out by the county deputy sheriff on the recommendation of a local attorney. In August of 1952, plaintiff was released from the state mental hospital. He then filed an action in the county circuit court to test the validity of his commitment. The circuit court found that the commitment was void, because of a failure by the authorities to comply with the applicable statutory requirements, and granted a permanent injunction …

Constitutional Law - Due Process - Privilege Against Self-Incrimination In State Criminal Proceedings, Frank M. Lacey

Michigan Law Review

In March 1951, defendant, a New York City policeman, was called to testify before a state grand jury investigating the association of city policemen with the criminal element of Kings County. Existing laws required public officers to execute a waiver of immunity to prosecution for matters to which their testimony related, on pain of losing their positions. The defendant signed such a waiver, and shortly thereafter resigned from the police force. He was called before the same grand jury again in December 1952, and on this occasion was asked whether he had ever accepted bribes while a policeman. He refused …

Legislation - Witness Immunity Act Of 1954 - Constitutional And Interpretative Problem, George S. Flint S.Ed.

Michigan Law Review

The passage in August, 1954 of a federal statute granting immunity under specified conditions to witnesses before congressional committees and in the federal courts marks a third legislative experiment designed to soften the effect of the Fifth Amendment as a limitation on the investigatory power of Congress. The first two attempts were less than successful. This comment will discuss the historical background of immunity legislation, and some possible constitutional pitfalls and problems of construction created by the statutory language.

Constitutional Law-Tax Exemption Contract, Grétel Schinnerer

Michigan Law Review

A charter granted in 1863 by the State of Georgia to the Atlantic Coast Line Railroad Company provided as follows: "The stock of said company shall be subject to a tax not exceeding ½ per cent per annum on the net proceeds of its investments." In 1931, the Georgia legislature levied a tax of 5½ per cent on corporate net income. The railroad brought an action seeking to have an assignment under this tax declared invalid, on the theory that the tax as applied to the plaintiff railroad violated the contract clause of the federal Constitution. The Georgia Supreme Court …