Law Commons^™

Stare Decisis In Lower Courts: Predicting The Demise Of Supreme Court Precedent, David C. Bratz

Washington Law Review

This Comment contends that under limited circumstances lower courts may refuse to follow authoritative precedent. The Comment begins by distinguishing the doctrine of stare decisis in the Supreme Court and the doctrine as applied to lower courts. Next, the Comment discusses the doctrine of implicit overrule and suggests that the concept of implicit overrule is not sufficiently broad to encompass all of the circumstances in which lower courts should be allowed to disregard precedent. Using McCray as a paradigm, this Comment concludes that lower courts, within narrow limits, should be free to disregard even authoritative precedent when it is predictable …

The Activist Legacy Of The New Deal Court, Raoul Berger

Washington Law Review

The activist legacy of the New Deal Court was free-wheeling adjudication. It sprang from the Four Horsemen's obdurate identification of their economic and social predilections with constitutional mandates, halting the Rooseveltian reform measures in their tracks, and bringing on the Court-Packing Plan. Although the Plan failed, it was followed by a shake-out resulting in the "reconstructed Court,'' a Court that had learned from its predecessors how to manipulate the Constitution, albeit for a new set of goals.

Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh

Washington Law Review

The Supreme Court's decisions have been characterized by an absence of general principles, which the Justices rationalize as the "particularization" of their analysis. The standards that do appear from time to time, such as "balancing interests" and "implied repeal," are merely euphemisms for discretion. There has been no consistent authorship of opinions because the Justices hold little enthusiasm for Indian law cases, and the Court seems to treat each dispute as if it were a matter of first impression. "Generalizations on this subject have become . . . treacherous" as a result of the Court's failure to make and stick …

The Intellectual Development Of The American Doctrine Of Judicial Review, Pnina Lahav

Faculty Scholarship

No abstract provided.

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …

Consequences Of Supreme Court Decisions Upholding Individual Constitutional Rights, Jesse H. Choper

Michigan Law Review

The thrust of this Article is to attempt to ascertain just what differences the Court's judgments upholding individual constitutional rights have made for those who fall within the ambit of their protection. It seeks to address such questions as: What were the conditions that existed before the Court's ruling? How many people were subject to the regime that was invalidated by the Justices? Was the Court's mandate successfully implemented? What were the consequences for those affected? At a subjective level, were the repercussions perceived as salutary by those (or at least most of those) who were the beneficiaries of the …

School Desegregation Law In The 1980'S: The Courts' Abandonment Of Brown V. Board Of Education, Neal Devins

William & Mary Law Review

No abstract provided.

Book Review: Louis D. Brandeis And The Progressive Tradition; Brandeis, Paul Brickner

Vanderbilt Law Review

Urofsky has captured the essence of Brandeis in his excellent and informative volume. Urofsky often demonstrates a fine facility for clarifying points and positions with meaningful factual details.His book reveals the depth of scholarship that one would expect from a co-editor of the five volume collection of Brandeis' letters."He recognized the importance of the relationship between Brandeis and Frankfurter and devoted an entire small chapter to their efforts to promulgate their views as described by Bruce Murphy. For a concise but telling biography of Brandeis, from the "people's attorney" to one of the Supreme Court's " nine old men", Urofsky's …

The Supreme Court And Private Schools: An Update, Neal Devins

Popular Media

No abstract provided.

Probable Cause And Common Sense: A Reply To The Critics Of Illinois V. Gates, Joseph D. Grano

University of Michigan Journal of Law Reform

Part I of this article reviews Gates's actual holding. Although one can view much of the Court's more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law …

The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt

University of Michigan Journal of Law Reform

This Note argues that the canons of construction should play a central role in the interpretation of Indian treaties and statutes. The Note proposes revitalization of the canons through congressional action codifying the rules of construction into federal law. Part I traces the historical development of the canons to further the federal-Indian trust relationship. Part II analyzes recent Supreme Court decisions that demonstrate decreased use of the canons. Part III argues that strong canons of construction are necessary to the development of self-determining Indian tribes and proposes federal legislation to ensure the continued vitality and importance of the canons of …

The Pretext Search Doctrine: Now You See It, Now You Don't, John M. Burkoff

University of Michigan Journal of Law Reform

One can only hope, to put it bluntly, that the Supreme Court majority in Villamonte-Marquez did not mean what it seemed to have said. Indeed, there is some evidence that this is precisely the case. In the same Term Villamonte-Marquez was decided, the Court also decided Texas v. Brown. In Brown, the Supreme Court continued to recognize and respond to the problem of pretext searches. In other words, the Court still acts as if the pretext search doctrine remains vital, despite the apparent body blow delivered to it in Scott and Villamonte-Marquez. The remainder of this Article …

The Fourth Amendment And The Control Of Police Discretion, William J. Mertens

University of Michigan Journal of Law Reform

The fourth amendment protects the security of people's "persons, houses, papers, and effects" in two distinct (if overlapping) ways. First, it requires a sufficiently weighty public interest before the government's agents are allowed to search or seize. Thus, for example, probable cause is required for arrest. Whatever uncertainty there may be in the phrase "probable cause" (and, for that matter, however indefinite the idea of "arrest" may have become), in this context, at least, the probable cause standard requires the demonstration of objective facts that point with some probability to the guilt for some particular offense of the person arrested. …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

Articles

Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Is The Burger Court Really Like The Warren Court?, Paul Bender

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi

Does Doctrine Matter?, Frederick Schauer

Michigan Law Review

A Review of The Burger Court: The Counter-Revolution That Wasn't by Vincent Blasi

Toward Increased Judicial Activism: The Political Role Of The Supreme Court, Michigan Law Review

Michigan Law Review

A Review of Toward Increased Judicial Activism: The Political Role of the Supreme Court by Arthur Selwyn Miller

Brandeis, Michigan Law Review

Michigan Law Review

A Review of Brandeis by Lewis J. Paper

From Swift To Erie: An Historical Perspective, Gene R. Shreve

Michigan Law Review

A Review of Harmony & Dissonance: The Swift & Erie Cases in American Federalism by Tony Freyer

Who Is Injured When Racially Discriminatory Private Schools Are Tax-Exempt?, Neal Devins

Faculty Publications

No abstract provided.

Diminished Luster In Escambia County?, Neal Devins

Faculty Publications

No abstract provided.

Did The Stotts Decision Really Spell The End Of Race-Conscious Affirmative Action?, William L. Robinson, Stephen L. Spitz

NYLS Journal of Human Rights

No abstract provided.

Diverting The Course Of Colorado River: A Reconciliation Of Seventh Circuit Adaptations, 17 J. Marshall L. Rev. 49 (1984), Michael W. Pinsof, Richard A. Wolfe

UIC Law Review

No abstract provided.

Federal Security Laws And Their Applicability To The Sale Of A Business: An Appeal For Regulatory Action, 17 J. Marshall L. Rev. 393 (1984), John W. Blenke Jr.

UIC Law Review

No abstract provided.

Illinois V. Gates: Probable Cause Redefined, 17 J. Marshall L. Rev. 335 (1984), James W. Reilley, Barry E. Witlin, Christine P. Curran

UIC Law Review

No abstract provided.

A New Look At An Old Association: Will Today's Women Be Tomorrow's Jaycees?, Neal Devins

Faculty Publications

No abstract provided.

Controlling The Structural Injunction, Robert F. Nagel

Publications

No abstract provided.

Do Government Rights Prevail, Or Are Shoshone Indians Trespassers In Their Own Country?, Richard B. Collins

Publications

No abstract provided.

Trends In The Supreme Court: Mr. Jefferson’S Crumbling Wall - A Comment On Lynch V. Donnelly, William W. Van Alstyne

Faculty Publications

No abstract provided.

What Standards Apply When Freedoms Collide?, Neal Devins

Faculty Publications

No abstract provided.