Law Commons^™

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

University of Michigan Journal of Law Reform

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the …

The Constitution And The New Deal, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate American lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes appeared - whatever the reality - to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court with Justices amenable to his programme. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson

Michigan Journal of Race and Law

Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

Repairing The Legacy Of Ins V. Elias-Zacarias, Shayna S. Cook

Michigan Journal of International Law

This Article examines the evolution of the nexus requirement in United States refugee law since the Elias-Zacarias decision. Part I discusses the Supreme Court's decision in Elias-Zacarias, identifying the choices the Court made among the arguments presented before it that resulted in the motive-oriented approach to nexus. This Part also delves into the Court's statement about the evidence required to demonstrate motive, concluding that the Court's treatment of the evidence before it foreshadows the confusion lower courts have demonstrated in evaluating evidence of motive. Part II looks at appellate decisions on the nexus issue since 1992, highlighting cases that …

Whatever Happened To G.I. Jane?: Citizenship, Gender, And Social Policy In The Postwar Era, Melissa E. Murray

Michigan Journal of Gender & Law

In this Article, it is argued that the GI Bill is consistent with the social welfare policies of the New Deal period, in particular the Social Security Act of 1935, and so should be examined within the analytical framework established by scholars like Linda Gordon and Theda Skocpol in their studies of the Social Security Act's social welfare programs. Although the Bill is gender-neutral on its face, it was framed by normative assumptions about military participation and work that ensured that it was socially understood to benefit male veterans.

Looking Back On Planned Parenthood V. Casey, Christina B. Whitman

Articles

Scholarship that tells us what is really at stake in the lives of people affected makes the law honest and responsive. Whether or not it directly shapes doctrine, this type of scholarship can capture imagination and influence judgment. The Michigan Law Review has published some of the best of this work: Yale Kamisar's articles on coerced confessions, Terry Sandalow's essay on affirmative action, Joe Sax and Phillip Hiestand's description of the emotional impact of living in a slum, Martha Chamallas and Linda Kerber's demonstration of how injuries that uniquely befall women have been dismissed as merely emotional wrongs, and, most …

...A Rendezvous With Kreplach: Putting The New Deal Court In Context, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes seemed--whatever the reality--to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

Confessions, Search And Seizure, And The Rehnquist Court, Yale Kamisar

Book Chapters

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life.

In Moran v. Burbine, a six to three majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (1) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (2) because the police failed to inform the suspect of the attorney's efforts to reach him.

Although Burbine has …

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

The Writings Of John Barker Waite And Thomas Davies On The Search And Seizure Exclusionary Rule, Yale Kamisar

Articles

After browsing through many volumes of the Michigan Law Review, searching for the article I would discuss on the occasion of the law review's 100th anniversary, I wound up with two "finalists": a 1955 article by Professor John Barker Waite on the law of arrest search and seizure (on further reflection, four Michigan Law Review commentaries on the general subject written by Waite between 1933 and 1955)' and a monumental 200-page article (surely one of the longest articles ever to appear in the Michigan Law Review) by Thomas Davies on the "original Fourth Amendment. 2