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Articles 1 - 30 of 46
Full-Text Articles in Law
Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros
Youngstown Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros
West Virginia Law Review
No abstract provided.
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …
Confronting Supreme Court Fact Finding, Allison Orr Larsen
Confronting Supreme Court Fact Finding, Allison Orr Larsen
Faculty Publications
No abstract provided.
Section 2: Roberts Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: Roberts Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 7: Gay Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Gay Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court: Fisher V. University Of Texas At Austin, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 3: Election Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Election Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: Business, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: International Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: International Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
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 …
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton
Foreign Affairs Federalism And The Limits On Executive Power, Zachary D. Clopton
Michigan Law Review First Impressions
On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism—the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to …
Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen
Legal Scholarship Highlight: Confronting Supreme Court Fact Finding, Allison Orr Larsen
Popular Media
No abstract provided.
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Michigan Journal of Race and Law
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
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 …
Context And Trivia, Samuel Brenner
Context And Trivia, Samuel Brenner
Michigan Law Review
My academic mantra, writes Professor James C. Foster in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital, which examines the history and development of the Supreme Court's decision in Morse v. Frederick, "[is] context, context, context" (p. 2). Foster, a political scientist at Oregon State University, argues that it is necessary to approach constitutional law "by situating the U.S. Supreme Court's ... doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance" (p. 1). He seeks to do so in BONG HiTS 4 JESUS …
Discarding The North Dakota Dictum: An Argument For Strict Scrutiny Of The Three-Tier Distribution System, Amy Murphy
Discarding The North Dakota Dictum: An Argument For Strict Scrutiny Of The Three-Tier Distribution System, Amy Murphy
Michigan Law Review
In Granholm v. Heald, the Supreme Court held that states must treat instate and out-of-state alcoholic beverages equally under the dormant Commerce Clause and established a heightened standard of review for state alcohol laws. Yet in dictum the Court acknowledged that the three-tier distribution system-a regime that imposes a physical presence requirement on alcoholic beverage wholesalers and retailers-was "unquestionably legitimate." Though the system's physical presence requirement should trigger strict scrutiny, lower courts have placed special emphasis on Granholm's dictum, refusing to subject the three-tier distribution system to Granholm's heightened standard of review. This Note argues that the dictum should be …
Explaining The Supreme Court's Shrinking Docket, Ryan J. Owens, David A. Simon
Explaining The Supreme Court's Shrinking Docket, Ryan J. Owens, David A. Simon
William & Mary Law Review
In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court’s plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court’s change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size. In a comprehensive study, the authors analyze ideological and contextual factors to determine …
Copyright And The Vagueness Doctrine, Bradley E. Abruzzi
Copyright And The Vagueness Doctrine, Bradley E. Abruzzi
University of Michigan Journal of Law Reform
The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …
Inside Agency Preemption, Catherine M. Sharkey
Inside Agency Preemption, Catherine M. Sharkey
Michigan Law Review
A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
Michigan Law Review
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …
Considerations For Private Equity Firms When Utilizing Chapter 11 New Value Deals, Alexandra Wilde
Considerations For Private Equity Firms When Utilizing Chapter 11 New Value Deals, Alexandra Wilde
Michigan Business & Entrepreneurial Law Review
The new value exception to the Chapter 11 absolute priority rule provides a narrow avenue for equity holders to retain an equity interest in a reorganized company over the objections of senior creditors and interest holders. With the increasing number of Chapter 11 reorganization filings by private equity owned companies, private equity firms may be interested in exploring ways to retain their equity ownership in the debtor company. This Note explores the unique implications a private equity firm may encounter when attempting to utilize the new value exception as a last resort to maintain ownership in a debtor company. Part …
Tax Exceptionalism: Wanted Dead Or Alive, Gene Magidenko
Tax Exceptionalism: Wanted Dead Or Alive, Gene Magidenko
University of Michigan Journal of Law Reform Caveat
Tax law has just not been the same since January 2011. Did Congress pass earthshaking legislation affecting the Internal Revenue Code? Did the IRS dramatically change regulations? If only it were that exciting. Instead, eight jurists sitting at One First Street in our nation’s capital transformed tax law in a less bloody, but no less profound, way. The thought must have gone through many a tax mind – is tax exceptionalism dead?
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
Why American Express V. Italian Colors Does Not Matter And Coordinated Pursuit Of Aggregate Claims May Be A Viable Option After Concepcion, Gregory C. Cook
University of Michigan Journal of Law Reform Caveat
This Comment suggests that the upcoming decision by the Supreme Court in American Express Co. v. Italian Colors Restaurant will not change the class action landscape. While the plaintiff bar contends that certain public policy goals will be lost as a result of American Express and AT&T Mobility LLC v. Concepcion, this Comment argues that, in the correct circumstances, coordinated individual arbitrations can address at least some of these public policy goals and plaintiff counsel should focus on such coordination efforts (including, for instance, ethically recruiting actually-injured plaintiffs, the use of common plaintiff counsel, the use of common experts, and …
Is Honor Tangible Property?, James Santiago
Is Honor Tangible Property?, James Santiago
University of Michigan Journal of Law Reform Caveat
United States Marine Corps Sergeant Dakota Meyer said, “When they told me that I would be receiving the Medal of Honor I told them that I didn’t want it, because I don’t feel like a hero.” This statement reflects the feelings of many real war heroes who deserve and are given recognition yet feel that they are unworthy of such accolades. Unfortunately, there are also individuals who want the recognition of being a war hero but lie about having served. Nevertheless, the First Amendment will continue to guarantee the freedom of speech of those who lie about unearned military honors …
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Michigan Telecommunications & Technology Law Review
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court's recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent--willful blindness--into the statute for patent infringement, a civil offense. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to …
Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker
Abortion And Informed Consent: How Biased Counseling Laws Mandate Violations Of Medical Ethics, Ian Vandewalker
Michigan Journal of Gender & Law
If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique …
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Michigan Journal of Gender & Law
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world …