Law Commons^™

Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Michigan Law Review

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and …

Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter

Michigan Law Review

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …

In The Stationhouse After Dickerson, Charles D. Weisselberg

Michigan Law Review

Miranda v. Arizona established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States, the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse. As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct …

Direct Democracy In America, Sherman J. Clark

Michigan Law Review

The phrase "laboratories of democracy," as applied to the states, seems most often to mean something more like "democratic laboratories" - democratic testing grounds for various approaches to social problems. What sort of welfare reform will be most effective? Let Wisconsin try out Plan A, while Michigan experiments with Plan B. What combination of tort liability rules will achieve desired levels of compensation and deterrence? Let the states experiment with strict liability, comparative negligence, or various nofault schemes. It is also true, however, that the states are literally laboratories of democracy - arenas in which democratic institutions are themselves experimented …

Hydraulic Empire, Joseph L. Sax

Michigan Law Review

A Review of The Great Thirst: Californians and Water, 1170s-1990s by Norris Hundley, Jr.

Less Law Than Meets The Eye, David D. Friedman

Michigan Law Review

A Review of Order Without Law: How Neighbors Settle Disputes by Robert C. Ellickson

The Ultimate Violation, Todd Maybrown

Michigan Law Review

A Review of The Ultimate Violation by Judith Rowland

Consider The Consequences, Martha Minow

Michigan Law Review

A Review of The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America by Lenore J. Weitzman

The Theory And Practice Of Civil Commitment, Andrew Scull

Michigan Law Review

A Review of The Court of Last Resort: Mental Illness and the Law by Carol A.B. Warren, contributions by Stephen J. Morse and Jack Zusman

Legislature: California's School For Politics, Michigan Law Review

Michigan Law Review

A Review of Legislature: California's School For Politics by William K. Muir, Jr.

State And Local Limitations On Ballot Measure Contributions, Michigan Law Review

Michigan Law Review

This Note's thesis is that ballot measure limitations unconstitutionally infringe upon the rights of free speech and association. Part I analyzes Buckley and concludes that the CARC court misapplied its distinction between contributions and direct expenditures. Part II tests ballot measure limitations against Buckley's "exacting scrutiny" standard. It identifies the state interests asserted in defense of ballot measure limitations - lessening abuse by narrow interest groups, reducing apathy, and equalizing political expression - and concludes that ballot measure limitations do not permissibly further these governmental interests.

Local Taxes, Federal Courts, And School Desegregation In The Proposition 13 Era, Michigan Law Review

Michigan Law Review

This Note examines a federal court's dilemma when the remedy of school desegregation collides with the trend of tax limitation - when a school desegregation order requires funds that the local school authorities do not have and cannot raise. Can the district court order a local tax levy to fund school desegregation when the school authorities have already reached their maximum taxing limit? Is there a better alternative remedy?

To tackle those questions, this Note first elucidates three equitable principles to guide courts in fashioning desegregation decrees. It then explores the history of judicial power to order state and local …

Constitutional Law-State Action: Significant Involvement In Ostensibly Private Discriminations-Mulkey V. Reitman, Michigan Law Review

Michigan Law Review

From 1959 through 1963, the California legislature enacted a series of statutes which prohibited racial discrimination in the sale or rental of housing. Most important among these were the Unruh Civil Rights Act, which proscribed racial discrimination by "business establishments of every kind,'' and the Rumford Fair Housing Act, which prohibited such conduct by anyone in the sale or rental of residential housing containing more than four units. Adverse public reaction to these statutes resulted in an amendment to the California constitution15 by means of an initiative measure in the general election of 1964. This amendment, popularly known as Proposition …

Evidence - Search And Seizure - Standing To Suppress Evidence Obtained By Unconstitutional Search And Seizure, Robert C. Casad S.Ed.

Michigan Law Review

The most radical departure of the new California doctrine from federal precedents, however, lies in the rejection of the requirement of "standing" which the federal courts have always imposed. In People v. Martin the California court announced its willingness to permit any criminal defendant to move for the exclusion of evidence obtained by unreasonable search and seizure -regardless of whether it was his premises that were searched or his property that was seized.

Rejection of the requirement of standing by this outstanding court calls for a re-evaluation of the requirement as it is imposed in every other jurisdiction that observes …

Descent And Distribution - Intestate Succession From An Adopted Child - Who Aim His "Brothers And Sisters", Jack G. Armstrong

Michigan Law Review

Decedent had never married and was predeceased by his natural and adopted parents. The California statute provided that in such a case his property would go to his brothers and sisters. Appellant, the natural daughter of decedent's adopted parents, contended that she was his sole heir under this statute, while respondent, decedent's natural brother, argued that the term ''brothers and sisters" meant blood relatives. The superior court applied the common meaning of the words brothers and sisters and held that appellant was not such a person. On appeal, held, reversed. Since the entire pattern of the California code indicates …

Constitutional Law-Validity Of New York Statute Setting Out Motorists' Implied Consent To Chemical Tests For Intoxication, Richard A. Shupe S.Ed.

Michigan Law Review

The State of New York has approved a statute, to go into effect July 1, 1953, which stipulates that any person who operates a motor vehicle or motorcycle in the state shall be deemed to have given his consent to chemical tests of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood. If such a person refuses to allow the tests, they will not be made, but the commissioner shall revoke his license or permit to drive, including the nonresident operating privilege. This is the first statute of its type and merits …

Constitutional Law-Review Of State Court Determination-Supreme Court's Vacation Of State Court Judgment Without Giving Grounds For Reversal, Marcus A. Rowden S.Ed.

Michigan Law Review

The Supreme Court of the United States granted plaintiff's petition for certiorari to review a decision of the Supreme Court of California summarily denying plaintiff's application for habeas corpus. Previously the cause had been continued to enable petitioner to secure a determination of the California Supreme Court as to whether its judgment was intended to rest on an adequate independent state ground. It was later held that a letter from the clerk of that court was not a sufficient determination of that question, and petitioner was still unable to obtain that determination. Held, judgment of the Supreme Court of …

Corporations-Officers And Directors-Effect Of Statutes On Contracts Between Corporations With Common Directors, William K. Davenport S.Ed.

Michigan Law Review

Legislative policy-making on the subject of contracts between corporations having interlocking directorates has required a balancing of the interest of corporate enterprise in the flexibility of business relations against the interest of minority shareholders in protection against self-dealing by corporate managers.

Constitutional Law-Equal Protection-Alien Land Law Violates Fourteenth Amendment, Sherman A. Itlaner S.Ed.

Michigan Law Review

Plaintiff, an alien Japanese, appealed from a judgment declaring an escheat of land purchased by him to the state pursuant to the California Alien Land Law prohibiting aliens ineligible for citizenship from holding land. On appeal, held, reversed. The Alien Land Law is unconstitutional under the equal protection clause of the Fourteenth Amendment as an "instrument for effecting racial discrimination . . . [ with] no circumstances justifying classification on that basis." Sei Fujii v. State, 38 Cal. (2d) 718, 242 P. (2d) 617 (1952).

Criminal Procedure-Extradition For Non-Support Under Section 6 Of The Uniform Criminal Extradition Act, David D. Dowd, Jr.

Michigan Law Review

Petitioner had been divorced while residing in the State of California and ordered to pay $30 per month to his wife for the support of three minor children. After moving to New Mexico he defaulted in the payments. The Governor of California requested the extradition of the petitioner under section 6 of the Uniform Criminal Extradition Act to answer the charge of failure to provide for minor children. Petitioner questioned his detention under the order for extradition by seeking a writ of habeas corpus in an original proceeding before the Supreme Court of New Mexico. Held, writ denied. Section …

Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed.

Michigan Law Review

Plaintiff sued in the United States District Court for the Southern District of New York to recover damages under the Jones Act for illness sustained while he was serving as a seaman on the defendant's steamship. The defendant moved to transfer the action to the United States District Court for the Northern District of California pursuant to Title 28 U.S.C. § 1404(a) which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Evidence introduced showed that …

Insurance-Conditions-Effect Of Non-Compliance With Notice Clause On Insurer's Liability, John W. Hupp S.Ed.

Michigan Law Review

Automobile liability insurance policies invariably contain a provision requiring immediate notice of accident and suit. The purpose of such a provision is to allow the insurer to make an investigation of the accident in order to prepare a defense and to prevent fraudulent and invalid claims. Although compliance with the provision may be of the utmost importance to the insurer, it frequently is a matter of little or no concern to the insured, and so upon the happening of an accident the insured frequently fails to give due notice to the insurer. The succeeding action by the injured party against …

Bankruptcy-Powers Of The Trustee-Llens By Legal Or Equitable Proceedings Under Section 70c, Edward D. Goldstein S.Ed.

Michigan Law Review

Husband and wife filed a petition in bankruptcy. They petitioned the United States District Court for the Southern District of California to set aside their residence from the bankruptcy estate as exempt property. They had not filed their declaration of homestead until after the petition in bankruptcy. The district court set aside the property as exempt. On appeal, held, affirmed. Under California law homestead exemptions can be perfected after a petition in bankruptcy. The trustee's claim that section 70c of the Bankruptcy Act gave him a lien that prevailed over a homestead claim subsequently recorded was denied on the …

Civil Procedure-Judgments-Collateral Attack On Decree Of Distribution Of A Probate Court, David W. Rowlinson

Michigan Law Review

Testator's will devised a tract of land to his three nieces and directed that the nieces should not sell or dispose of the land for twenty years after his death. This provision was incorporated in the decree of the probate court distributing the land to the three nieces. After the decree of distribution had become final, one of the nieces brought the present action for partition. Over the objection that the decree was conclusive and forbade this type of alienation, the trial court ordered partition. On appeal, held, affirmed. The condition restraining alienation for twenty years is forbidden by …

Federal Procedure-Change Of Venue On Motion Of The Plaintiff, David F. Ulmer S. Ed.

Michigan Law Review

Plaintiff, a resident of California, was injured on defendant corporation's premises in Nevada. Being unable to serve defendant in California, plaintiff started a negligence action in the Federal District Court in Nevada and then moved for a change of venue to the proper Federal District Court in California under section 1404(a) of the Judicial Code. The Federal District Court of Nevada overruled plaintiff's motion. On appeal, held, affirmed. The requirement under 1404(a) that the action be transferred to any district "where it might have been brought" precludes transfer to a forum where the defendant was not amenable to process. …

Federal Procedure-Mandamus-Use To Prevent Change Of Venue, Richard J. Darger S. Ed.

Michigan Law Review

Petitioners instituted a suit in the District Court for the Southern District of California seeking damages for alleged patent infringement. That court ordered the case transferred to the District Court for the District of Delaware on the ground that venue was not properly laid in the Southern District of California. Then petition was made to the Court of Appeals for the Ninth Circuit for mandamus to compel the judge of the lower court to withdraw the order of transfer. Held: petition denied. Mandamus will issue to prevent a transfer of a case to the district court of another circuit …

Constitutional Law-Relation Of Federal And State Governments- Title Of United States To Tidelands, John K. Delay, Jr.

Michigan Law Review

For the past decade and a half, one of the most harrassing problems in the realm of federal-state relationships has been that concerned with the ownership of the so-called "tidelands." This struggle of interests, which involves 23,000 square miles of offshore lands within the boundaries of the littoral states, has developed since 1937; for prior to that time, the Federal Government recognized the states' claims, making no assertion of federal ownership. The development of the conflict appears to be coextensive with the discovery and development of valuable mineral deposits found under these submerged lands, which have been leased to private …

Process--Immunity From Service--Person Entering A State To File An Action, Patrick J. Ledwidge

Michigan Law Review

Petitioner, a resident of Missouri, entered California to gain custody of his child from its maternal grandmother. After eight days of fruitless negotiation he commenced habeas corpus proceedings. While attempting to serve the writ of habeas corpus, petitioner was served with a summons in an action brought by the grandmother for support of the child. When the trial court denied petitioner's motion to quash the service of summons on him, he sought a writ of prohibition from the district court of appeals to prevent further prosecution of the second action. Held, petition denied; petitioner's eight day delay justified inference …

Process--Immunity From Service--Person Entering A State To File An Action, Patrick J. Ledwidge

Michigan Law Review

Petitioner, a resident of Missouri, entered California to gain custody of his child from its maternal grandmother. After eight days of fruitless negotiation he commenced habeas corpus proceedings. While attempting to serve the writ of habeas corpus, petitioner was served with a summons in an action brought by the grandmother for support of the child. When the trial court denied petitioner's motion to quash the service of summons on him, he sought a writ of prohibition from the district court of appeals to prevent further prosecution of the second action. Held, petition denied; petitioner's eight day delay justified inference …

Constitutional Law-Exports-Immunity From State Taxation, Paul E. Anderson S.Ed.

Michigan Law Review

Article 1, section 10 of the Constitution provides, "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports . . . . " This clause places a limitation on state taxing power. The basic problem is to determine at what point goods in the process of being manufactured and prepared for foreign shipment become exports. If the goods are found to be exports, they are immune to state taxation. Two recent Supreme Court decisions have dealt with this question in an attempt to lay down a general rule applicable to future situations. Because …