Law Commons^™

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

Courts Of Appeal And Colonialism In The British Caribbean: A Case For The Caribbean Court Of Justice, Ezekiel Rediker

Michigan Journal of International Law

In recent years, a public debate on law and the colonial legacy has engaged people of all walks of life in the English Speaking Caribbean (ESC), from judges and politicians to young people in the streets. Throughout the ESC, the Judicial Committee of the Privy Council (JCPC)—based in London and composed of British jurists—has been the highest court of appeal since the colonial era. In the past decade, however, Caribbean governments have sought greater control over their legal systems. In 2005, they created the Caribbean Court of Justice (CCJ) to supplant the British Privy Council as the Supreme Court for …

Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger

Michigan Journal of Race and Law

The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …

Facades Of Justice, Norman W. Spaulding

Michigan Law Review

Representing Justice is a book of encyclopedic proportions on the iconography of justice and the organization of space in which adjudication occurs. Professors Judith Resnik and Dennis Curtis have gathered a provocative array of images, ranging from the scales of the Babylonian god Shamash-"judge of heaven and earth"-on a 4,200-year-old seal (pp. 18- 19 & fig. 23), and a 600-year-old painting of Saint Michael weighing the souls at the Last Judgment with sword and scales in hand (p. 23 fig. 25) to the tiny Cook County Courthouse in Grand Marais, Minnesota, 110 miles north of Duluth (p. 372 fig. 226), …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega

Michigan Journal of International Law

In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.

A Critical Guide To The Iraqi High Tribunal's Anfal Judgement: Genocide Against The Kurds, Jennifer Trahan

Michigan Journal of International Law

In the Anfal trial, the Iraqi High Tribunal (IHT or the Tribunal) in Baghdad convicted former Iraqi high officials of genocide, crimes against humanity, and war crimes. Unlike its predecessor-the Dujail trial-the Anfal trial included the presentation of a high volume of documentary and eye-witness evidence. This evidence clearly revealed the existence of a genocidal campaign by the former Iraqi government and military that eliminated an estimated 182,000 Iraqi Kurds in 1988, as part of the eight-phased "Anfal campaign" (the Anfal). Relying on this and other evidence, judges in the Anfal Trial Chamber explained fairly persuasively how genocide, crimes against …

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

Is A Burrito A Sandwich? Exploring Race, Class, And Culture In Contracts, Marjorie Florestal

Michigan Journal of Race and Law

A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Abandoning The Pia Standard: A Comment On Gila V, Galen Lemei

Michigan Journal of Race and Law

Part I of this Note examines the development of Indian reserved water rights, and the practicably irrigable acreage method of quantifying those rights, as defined by the Court. Part II describes the arguments of state and private interests that oppose broad Indian water rights. Part III discusses Gila V, including the Arizona Supreme Court's rationale for abandoning the standard set forth by the U.S. Supreme Court and the standard for quantifying Indian reserved rights that the court applied in its place. Part IV analyzes the Arizona Supreme Court's justifications for abandoning the standard, and considers alternate grounds for the …

E-Obviousness, Glynn S. Lunney Jr.

Michigan Telecommunications & Technology Law Review

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

Establishing New Legal Doctrine In Managed Care: A Model Of Judicial Response To Industrial Change, Peter D. Jacobson, Scott D. Pomfret

University of Michigan Journal of Law Reform

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry.

In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our …

Grotius Repudiated: The American Objections To The International Criminal Court And The Commitment To International Law, Marcell David

Michigan Journal of International Law

This article analyzes the American objections to the Statute. Part I describes the historical precedents for a permanent international criminal court and the drafting process undertaken. Part I concludes with a summary of the sections of the Statute which are implicated by the American objections. These statutory sections include the Statute's definitions of crimes, the role of the Prosecutor, the Court's anticipated relationship with the U.N. Security Council, and the Court's anticipated jurisdiction over states not party to the Statute. Part II selects three recent or current instances where the United States has used armed force, and analyzes the claims …

Women In The Courts: An Old Thorn In Men's Sides, Nikolaus Benke

Michigan Journal of Gender & Law

This article was inspired by the work of a series of state task forces on women in the courts. It examines the subject from a historical perspective, comparing ancient Rome, mainly during the period from the first century B.C. to the third A.D., with the United States, from its prerevolutionary beginnings to the present. The article's focus is gender bias against women acting in official court functions.

Resolving Economic Disputes In Russia's Market Economy, Karen Halverson

Michigan Journal of International Law

The purpose of this paper is to examine the recent transformation of state arbitrazh into economic courts along with the development of commercial arbitration in Russia, and to consider the relative utility of these mechanisms for resolving disputes in Russia's evolving market economy. Part I describes state arbitrazh and details its evolution into the existing system of economic courts. Part II discusses the past and recent development of commercial arbitration in Russia as an alternative to litigating domestic disputes. Part III considers various social and historic factors that hinder genuine reform.

Fictions, Fault, And Forgiveness: Jury Nullification In A New Context, David N. Dorfman, Chris K. Iijima

University of Michigan Journal of Law Reform

Recently, critics of the Anglo-American jury system have complained that juries in criminal trials have been ignoring the law, in favor of defendants who claim that they lack criminal responsibility because they are afflicted by the various victimization syndromes now popularized in the mass media. In this Article, Professors Dorfman and Iijima counter this characterization of the "runaway" jury and argue that juries are not ignoring the law, but rather, are exercising a primary power of the jury, to nullify the application of the law when such application to a particular defendant is unjust. The Authors trace the development of …

Litigation And Inequality: Federal Diversity Jurisdiction In Industrial America, David A. Luigs

Michigan Law Review

A Review of Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America by Edward A. Purcell, Jr.

Criminal Justice In The Lower Courts: A Study In Continuity, Gerald Caplan

Michigan Law Review

A Review of The Transformation of Criminal Justice: Philadelphia, 1800-1880 by Allen Steinberg

On Human Rights: The Use Of Human Right Precepts In U.S. History And The Right To An Effective Remedy In Domestic Courts, Jordan J. Paust

Michigan Journal of International Law

Early in the history of the United States, human rights, then often termed the "rights of man," were understood to be those natural, unalienable rights of all persons that no government on earth could deny - rights that are a part of law, whether written or unwritten, and that free and democratic governments are formed to further and to protect. As Alexander Hamilton recognized in 1775, "the sacred rights of mankind... are written, as with a sunbeam, in the whole volume of human nature… and can never be erased or obscured by mortal power." Yet, as Hamilton must have known, …

Tribal Court Jurisdiction Over Civil Disputes Involving Non-Indians: An Assessment Of National Farmers Union Insurance Cos. V. Crow Tribe Of Indians And A Proposal For Reform, Allison M. Dussias

University of Michigan Journal of Law Reform

This Note examines the issue of tribal court jurisdiction over cases in which both Indians and non-Indians are parties and discusses the Supreme Court's most recent statement on the issue. In National Farmers Union Insurance Cos. v. Crow Tribe of Indians, an Indian minor brought a personal injury action in Crow Tribal Court against a Montana school district operating a school on state-owned land within the Crow Reservation. The Supreme Court concluded that the tribal court itself should first determine whether it has the power to exercise civil subject-matter jurisdiction over non-Indian property owners in a tort case. Defendants …

Conscience And The Law: The English Criminal Jury, Robert C. Palmer

Michigan Law Review

A Review of Verdict According to Conscience by Thomas Andrew Green

Is The Section 1983 Civil Rights Statute Overworked? Expanded Use Of Magistrates--An Alternative To Exhaustion, Brian P. Owensby

University of Michigan Journal of Law Reform

Part I of this Note discusses the history and purpose of section 1983 and identifies the danger unmanaged growth of 1983 suits poses to civil rights. Part II examines several judicial responses to the 1983 caseload problem and concludes that congressional action is more appropriate. Parts III and IV explore two areas of possible legislative action. Part III questions the efficacy of a legislatively imposed requirement that the claimant exhaust state administrative remedies as a prerequisite to a 1983 suit in federal court. Part IV proposes an alternative congressional response to the 1983 caseload problem: a carefully tailored use of …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

Habeas Corpus: Its History And Its Future, Charles Alan Wright

Michigan Law Review

A Review of A Constitutional History of Habeas Corpus by William F. Duker

Exploring The Roots Of Our Criminal Justice Systems, Samuel Walker

Michigan Law Review

A Review of The Roots of Justice by Lawrence M. Friedman and Robert V. Percival, and Conscience and Convenience by David Rothman

A Comparative Perspective On Legal Evolution, Revolution, And Devolution, Laura Nader

Michigan Law Review

A Review of Courts--A Comparative and Political Analysis by Martin Shapiro, and Lawsuits and Litigants in Castile, 1500-1700 by Richard L. Kagan