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Articles 1 - 18 of 18
Full-Text Articles in Law
Systemic Compliance Complaints: Making Idea's Enforcement Provisions A Reality, Monica Costello
Systemic Compliance Complaints: Making Idea's Enforcement Provisions A Reality, Monica Costello
University of Michigan Journal of Law Reform
Since the passage of what is now known as the Individuals with Disabilities Education Act ("IDEA") in 1975, this country has recognized the importance of providing appropriate educational services to students with disabilities. When a school district fails to provide these services, an organization can file a compliance complaint with the state's designated education agency to investigate the violation. This Note uses California as a case study and argues that state education agencies should be required to investigate systemic violations, even when the names of affected students are not provided. To effectively protect the rights of students with disabilities and …
Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss
Michigan Law Review
The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …
Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak
Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak
University of Michigan Journal of Law Reform
Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act's revisions to FISA. Part II discusses the problems with the "primary purpose" test, which was in effect prior to the Patriot Act's revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act's "significant purpose" test. Part IV proposes that Congress enact a new "inextricably intertwined" test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted …
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
University of Michigan Journal of Law Reform
The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …
Confidence In The Nonprofit Sector Through Sarbanes-Oxley-Style Reforms, Joseph Mead
Confidence In The Nonprofit Sector Through Sarbanes-Oxley-Style Reforms, Joseph Mead
Michigan Law Review
Over the past several years, the nonprofit sector suffered a series of highly visible scandals that shook the public's confidence in charitable organizations. Concerned politicians and nonprofit leaders responded with a variety of reforms inspired by the Sarbanes-Oxley Act. The Note focuses on three such reforms: requiring nonprofit officers certify financial statements, mandating audits of nonprofits' financial statements, and imposing independent audit committees on nonprofit boards of directors. This Note argues that, contrary to the conclusions of many commentators, these reforms will provide a net benefit to the nonprofit sector by increasing donor confidence while imposing minimal costs.
The Significance Of The Local In Immigration Regulation, Cristina M. Rodríguez
The Significance Of The Local In Immigration Regulation, Cristina M. Rodríguez
Michigan Law Review
The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable. I argue that the time has come …
The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji
The Justiciability Of Eligibility: May Courts Decide Who Can Be President?, Daniel P. Tokaji
Michigan Law Review First Impressions
The 2008 election cycle has been a busy one for legal disputes over the qualifications of presidential candidates, with federal cases having been filed to challenge both major candidates’ eligibility under the “natural born Citizen” clause. These cases unquestionably present vital questions of constitutional law, touching on matters of self-evident national importance. It is doubtful, however, that they are justiciable in lower federal courts. Standing requirements and the political question doctrine make it unlikely that a federal court will reach the merits in cases of the type filed to date.
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Mccain’S Citizenship And Constitutional Method, Peter J. Spiro
Michigan Law Review First Impressions
Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Originalism And The Natural Born Citizen Clause, Lawrence B. Solum
Michigan Law Review First Impressions
The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.
Synopsis Of The Extraterritorial Protection Afforded By Section 337 As Compared To The Patent Act , Neil F. Duchez
Synopsis Of The Extraterritorial Protection Afforded By Section 337 As Compared To The Patent Act , Neil F. Duchez
Michigan Telecommunications & Technology Law Review
Unlike Section 271 of the Patent Act of 1952, "[s]ection 337 is a trade law which is not necessarily limited by the principles of domestic patent law." When examined more closely, Section 337 of the U.S. Tariff Act of 1930 in effect provides a patentee more protection from infringing foreign activity than Section 271. Accordingly, in many situations involving foreign acts, it may be more advantageous to enforce a U.S. patent at the International Trade Commission ("Commission") as opposed to a federal district court. The analysis discussed infra more closely examines those situations and provides the history behind the intended …
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum
Michigan Journal of Race and Law
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …
In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis
In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis
Michigan Journal of Race and Law
The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …
A Quest For Acceptance: The Real Id Act And The Need For Comprehensive Gender Recognition Legislation In The United States, Jason Allen
Michigan Journal of Gender & Law
This Article maintains that the Real ID Act highlights the need for U.S. federal gender recognition legislation in the mold of the GRA. Part II offers background into the psychology of transgender people, explaining how the medical community views and treats this "condition." Part III illustrates the fundamental value of gender recognition rights and examines the inadequacy of U.S. statutory and case law. This discussion then traces the evolution of the GRA in the United Kingdom as the culmination of a mandate from the European Court of Human Rights (ECHR). Part IV argues that the United States should adopt a …
The Failure Of Breast Cancer Informed Consent Statuses, Rachael Anderson-Watts
The Failure Of Breast Cancer Informed Consent Statuses, Rachael Anderson-Watts
Michigan Journal of Gender & Law
Breast cancer informed consent legislation was introduced in response to breast cancer patient discontent with doctor-patient relationships. Physicians do not always believe that explaining treatment alternatives is important, and in this respect, legislation promoting the discussion of alternative treatment could be positive for breast cancer patients, many of whom do in fact have several viable medical options. Studies have found, however, that these statutes have no lasting impact on patient decision-making. Why aren't these patient-driven statutes affecting patient decision-making? And why is medical advice coming from the law at all? This Article argues that this legislation is a poor tool …
"Please Write 'E' In This Box" Toward Self-Identification And Recognition Of A Third Gender: Approaches In The United States And India, Jennifer Rellis
"Please Write 'E' In This Box" Toward Self-Identification And Recognition Of A Third Gender: Approaches In The United States And India, Jennifer Rellis
Michigan Journal of Gender & Law
Part I of this Article defines intersexuality and highlights the legal and societal complications that occur when the concept of the fixed male-female gender binary is challenged. Part II describes the unique role of the hijras in India, who are both revered and discriminated against, and suggests that India is beginning to legally recognize a third gender through the grassroots advocacy of the hijras. Part III contrasts the experience of intersexed individuals in the United States by describing the current protocol to deal with the "medical emergency" of the birth of an intersexed child. This section forecasts legal issues facing …
Unusual Suspects: Recognizing And Responding To Female Staff Perpetrators Of Sexual Misconduct In U.S. Prisons, Lauren A. Teichner
Unusual Suspects: Recognizing And Responding To Female Staff Perpetrators Of Sexual Misconduct In U.S. Prisons, Lauren A. Teichner
Michigan Journal of Gender & Law
Despite the general public's ignorance of this issue of sexual misconduct perpetrated by female prison staff against male inmates, such stories are remarkably familiar to those who study or work in the world of prisons. The Prison Rape Elimination Act ("PREA") of 2003 mandated that the Bureau of Justice Statistics ("the Bureau") undertake new studies of sexual violence in prisons. Accordingly, the Bureau released a report in July 2006 revealing some groundbreaking data. Of the 344 substantiated allegations of staff-on-inmate sexual violence made in federal, state, and private prisons in 2005, 67% of the overall victims were male inmates and …
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Why John Mccain Was A Citizen At Birth, Stephen E. Sachs
Michigan Law Review First Impressions
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin
Michigan Law Review First Impressions
Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.