Law Commons^™

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson

Michigan Law Review First Impressions

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

An Alternative Approach To Evaluating Attorney Speech Critical Of The Judiciary: A Balancing Of Court, Attorney, And Public Interests, Benjamin Beezy

UC Irvine Law Review

No abstract provided.

In Memoriam: The Honorable Leroy Rountree Hassell, Sr., Hon. Harry L. Carrico

University of Richmond Law Review

Leroy Rountree Hassell, Sr. passed away on February 9, 2011. News of his death devastated those of us associated with him onthe Supreme Court of Virginia. We had lost a dear friend, one always conscious of the needs of his associates and anxious about making sure they were comfortable. Even more, the court lost its peerless leader, and the people of the Commonwealth of Virginialost a dedicated public servant. He will be sorely missed in allcorners of our great state.

Shutting The Black Door: Using American Needle To Cure The Problem Of Improper Product Definition, Daniel A. Schwartz

Michigan Law Review

Section 1 of the Sherman Act is designed to protect competition by making illegal any agreement that has the effect of limiting consumer choice. To make this determination, courts first define the product at issue and then consider the challenged restraint's impact on the market in which that product competes. When considering § 1 allegations against sports leagues, courts have tended to define products according to the structure of the leagues. The result of this tendency is that harm to competition between the leagues' teams is not properly accounted for in the courts' analyses. This, in turn, grants leagues a …

About Coincidence, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

Appellate Judges As Gatekeepers? An Investigation Of Threshold Decisions In The Federal Courts Of Appeals, Erin B. Kaheny

The Journal of Appellate Practice and Process

No abstract provided.

Military's Approach To Appellate Law, The, Jay L. Thoman

The Journal of Appellate Practice and Process

No abstract provided.

Back To The Drawing Board: Re-Examining Accepted Premises Of Regional Circuit Structure, Martha Dragich

The Journal of Appellate Practice and Process

No abstract provided.

Setting The Record Straight On State V. John Ingram Purtle: Reflections On The Great Dissenter, Samuel A. Perroni

University of Arkansas at Little Rock Law Review

No abstract provided.

Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett

Indiana Law Journal

No abstract provided.

Juror Investigation: Is In-Courtroom Internet Research Going Too Far?, Duncan Stark

Washington Journal of Law, Technology & Arts

Lawyers traditionally have conducted research on potential jurors outside the courtroom as part of voir dire. But as wireless Internet access becomes ubiquitous, attorneys are increasingly likely to conduct juror research inside the courtroom, including during voir dire itself. In the August 2010 decision Carino v. Muenzen, a New Jersey appeals court held that a trial court judge erred when he told a lawyer to close his laptop during voir dire, reasoning that there was no disruption, no resulting prejudice, and no rule against researching jurors online during the proceeding. This Article examines the Carino decision and the issue …

Rethinking Discrimination Law, Sandra F. Sperino

Michigan Law Review

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Deconstructing 'Just And Proper': Arguments In Favor Of Adopting The 'Remedial Purpose' Approach To Section 10(J) Labor Injunctions, William K. Briggs

Michigan Law Review

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief "just and proper." To this day a circuit split persists over the correct interpretation of this "just and proper" standard. Some circuits interpret "just and proper" to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret "just and proper" to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board's remedial power This Note examines the …

Carter's Groundbreaking Appointment Of Women To The Federal Bench: His Other "Human Rights" Record, Mary L. Clark

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.

University of Michigan Journal of Law Reform

Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …

Statistical Criticism Of Jury Selection Methods In The Western District Of Oklahoma, R. Darcy, Brett M. Stingley

Buffalo Public Interest Law Journal

No abstract provided.

Samantar V. Yousuf: Recent Developments In The Laws Governing Civil Torture Claims In U.S. Courts, Solomon B. Shinerock

Buffalo Human Rights Law Review

No abstract provided.

Preventing Divisiveness: The Ninth Circuit Upholds The 1954 Pledge Amendment In Newdow V. Rio Linda Union School District, Devin Snow

BYU Law Review

No abstract provided.

Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer

Indiana Law Journal

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.

Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Michigan Journal of International Law

If, with the benefit of hindsight, Mr. Choudhury's case was a harbinger of the emergence of various problems associated with Islam and the rights of Muslim minorities in European nation-states, then the events of September 11, 2001 have propelled these issues to the forefront of law and politics in a way unimaginable even a decade earlier. In Denmark, cartoons depicting the Islamic prophet Muhammad as a suicide bomber have been published leading to protests and violence across Europe and the Islamic world; a law prohibiting students in public schools from wearing symbols or attire through which they conspicuously exhibit a …

Chinese Judicial Culture: From Tradition To Modernity, Shen Deyong

Brigham Young University Journal of Public Law

Text of an address by the Hon. Justice Shen Deyong at the Brigham Young University Law School, October 21, 2009.

Introduction, Marsha S. Berzon

Golden Gate University Law Review

As judges of the geographically largest and busiest federal circuit court of appeals, the 26 active and 22 senior Ninth Circuit judges rarely have the luxury of looking back at the cases we have decided, rather than working on the opinions yet to be written and preparing for the new cases coming up for argument. That the Golden Gate University Law Review has for so many years (since Volume 6 in 1976) produced this annual volume documenting and analyzing our work product has been essential in filling the gap by providing an objective assessment of what – and how – …

Patent Amicus Briefs: What The Courts' Friends Can Teach Us About The Patent System, Colleen V. Chien

UC Irvine Law Review

No abstract provided.

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

District Courts As Patent Laboratories, Jeanne C. Fromer

UC Irvine Law Review

No abstract provided.

Judicial Reform, Constitutionalism And The Rule Of Law In Zambia: From A Justice System To A Just System, Muna Ndulo

Zambia Social Science Journal

In Zambia it is generally agreed on by all stakeholders that the judicial system needs reform to make it more accountable, independent, and able to deliver justice efficiently and effectively. This article discusses judicial reform in the context of the independence of the judiciary. It tries to unpack the term judicial reform. It argues that for the rule of law and constitutionalism to prevail it is crucial that the judiciary is independent and there is separation of powers between the executive and the judiciary, and legislature and the judiciary. For judges to be personally and substantively independent they need security …

The Roberts Court And Freedom Of Speech, Erwin Chemerinsky

Federal Communications Law Journal

This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association's Distinguished Speaker Series.

This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA's Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court's position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its …

Has The Time (Of Laches) Come? Recent Nazi-Era Art Litigation In The New York Forum, Bert Demarsin

Buffalo Law Review

No abstract provided.