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Articles 1 - 29 of 29
Full-Text Articles in Law
Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons
Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons
University of Michigan Journal of Law Reform
The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Articles
In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. …
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow
Michigan Law Review
The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
The Supreme Court's Controversial Gvrs - And An Alternative, Aaron-Andrew P. Bruhl
Michigan Law Review
This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"-that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article …
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Reviews
Of all of Chicago's law and economics conquests, antitrust was the most complete and resounding victory. Chicago, of course, is a synecdoche for ideological currents that swept through and from Hyde Park beginning in the 1950s and reached their peak in the 1970s and 1980s. From early roots in antitrust and economic regulation, the Chicago School branched outward, first to adjacent fields like securities regulation, corporate law, property, and contracts, and eventually to more distant horizons like sexuality and family law. Predictably, the Chicago School exerted its greatest influence in fields closely tied to commercial regulation. But never did Chicago …
Florida V. Bostick, Yale Kamisar
Florida V. Bostick, Yale Kamisar
Other Publications
501 U.S. 429 (1991), argued 26 Feb. 1991, decided 20 June 1991 by vote of 6 to 3; O’Connor for the Court, Marshall in dissent. What constitutes a “seizure” within the meaning of the Fourth Amendment? Police practices need not be “reasonable”—indeed, are not regulated by the Fourth Amendment at all—unless they are considered “searches” or “seizures.” In this case, which involved a growing antidrug police tactic known as “working the buses” (randomly approaching a bus passenger and asking him for identification and to grant permission to search his luggage), the Court took a narrow view of what constitutes a …
Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray
Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray
Michigan Telecommunications & Technology Law Review
If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …
Appellate Review Of Patent Claim Construction: Should The Federal Circuit Be Its Own Lexicographer In Matters Related To The Seventh Amendment, Eileen M. Herlihy
Appellate Review Of Patent Claim Construction: Should The Federal Circuit Be Its Own Lexicographer In Matters Related To The Seventh Amendment, Eileen M. Herlihy
Michigan Telecommunications & Technology Law Review
The Federal Circuit stated in an en banc decision in Cybor Corp. v. FAS Technologies, Inc. that the construction of patent claims is "a purely legal issue," and is therefore subject to de novo review on appeal. The Cybor decision reaffirmed the position of the majority of the Federal Circuit which had been announced in its en banc Markman decision, and proclaimed that the de novo standard of review is supported by the Supreme Court's Markman decision, a Seventh Amendment opinion. However, Cybor included strong opposition to a de novo standard of review from some of the judges of the …
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
Michigan Journal of Race and Law
In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. …
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Michigan Law Review First Impressions
A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …
Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price
Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price
Michigan Journal of Race and Law
Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Articles
Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …
Escobedo V. Illinois, Yale Kamisar
Escobedo V. Illinois, Yale Kamisar
Other Publications
378 U.S. 438 (1964), argued 29 Apr. 1964, decided 22 June 1964 by vote of 5 to 4; Goldberg for the Court, Harlan, Stewart, White, and Clark in dissent. When Danny Escobedo, a murder suspect, was taken to the police station and put in an interrogation room, he repeatedly asked to speak to the lawyer he had retained. Escobedo's lawyer soon arrived at the station house and repeatedly asked to see his client. Despite the persistent efforts of both Escobedo and his lawyer, the police prevented them from meeting. The police also failed to advise Escobedo of his right to …
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Articles
A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.
Mallory V. United States, Yale Kamisar
Mallory V. United States, Yale Kamisar
Other Publications
354 U.S. 449 (1957), argued 1 Apr. 1957, decided 24 June 1957 by vote of 9 to 0; Frankfurter for the Court. Although the power of the Supreme Court to overturn state convictions is limited to the enforcement of Fourteenth Amendment due process rights, the Court may formulate rules of evidence in the exercise of its “supervisory power” over the administration of federal criminal justice that go well beyond due process requirements. The best-known example is the McNabb-Mallory rule.
Massiah V. United States, Yale Kamisar
Massiah V. United States, Yale Kamisar
Other Publications
377 U.S. 201 (1964), argued 3 Mar. 1964, decided 18 May 1964 by vote of 6 to 3; Stewart for the Court, White in dissent. Massiah was decided at a time when the Warren Court's “revolution in American criminal procedure” was accelerating. According to Massiah, after the initiation of adversary judicial proceedings (by indictment, as in Massiah's case, or by information, preliminary hearing or arraignment), the Sixth Amendment guarantees a defendant the right to rely on counsel as the “medium” between himself and the government. Thus, once adversary proceedings have begun, the government cannot bypass the defendant's lawyer and …
Miranda V. Arizona, Yale Kamisar
Miranda V. Arizona, Yale Kamisar
Other Publications
384 U.S. 436 (1966), argued 28 Feb. 1966, decided 13 June 1966 by vote of 5 to 4; Warren for the Court, Clark, Harlan, White, and Stewart in dissent. The Warren Court's revolution in American criminal procedure reached its high point (or, depending upon one's perspective, its low point) on 13 June 1966. That day the Court handed down its opinion in Miranda, the most famous, and most bitterly criticized, confession case in the nation's history. To some, Miranda symbolized the legal system's determination to treat even the lowliest and most despicable criminal suspect with dignity and respect. But …
California V. Acevedo, Yale Kamisar
California V. Acevedo, Yale Kamisar
Other Publications
500 U.S. 565 (1991), argued 8 Jan. 1991, decided 30 May 1991 by vote of 6 to 3; Blackmun for the Court, Scalia concurring, Stevens in dissent. Until the 1991 Acevedo case was decided, two different rules governed the search of closed containers found in a motor vehicle. In United States v. Ross (1982), the Court held that if the police had probable cause to search an entire vehicle for contraband and came upon a closed container in the course of the automobile search, they could open the container without first obtaining a warrant. On the other hand, in Arkansas …
Owen J. Roberts, Richard D. Friedman
Owen J. Roberts, Richard D. Friedman
Book Chapters
Roberts, Owen Josephus (1875-1955). Lawyer and U.S. Supreme Court justice. Roberts was born in Philadelphia and graduated from the University of Pennsylvania in 1895 and from its law school in 1898. He taught there part-time beginning almost immediately until 1919, reaching the rank of full professor in 1907. While operating a profitable dairy farm, Roberts practiced law privately, punctuated by a three-year stint beginning in 1901 as first assistant district attorney of Philadelphia County. Tall and robust, he made a striking figure in both classroom and courtroom.
Charles Evans Hughes, Richard D. Friedman
Charles Evans Hughes, Richard D. Friedman
Book Chapters
Hughes, Charles Evans (1862-1948). Lawyer, politician, diplomat, and chief justice of the United States. Hughes was born in Glens Falls, N.Y., the son of a Baptist preacher from the English- Welsh border country who changed congregations from time to time. Young Hughes spent his earliest years in several locations in New York and New Jersey before the family settled in Brooklyn. A precocious child, he was educated both at home and in public school. At age 14, he began college at Madison (now Colgate) University, a Baptist institution. After his sophomore year, he transferred to Brown, which also had a …
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
Linkline's Institutional Suspicions, Daniel A. Crane
Linkline's Institutional Suspicions, Daniel A. Crane
Articles
Antitrust scholars are having fun again. Not so long ago, they were the poor, redheaded stepchildren of the legal academy, either pining for the older days of rigorous antitrust enforcement or trying to kill off what was left of the enterprise. Other law professors felt sorry for them, ignored them, or both. But now antitrust is making a comeback of sorts. In one heady week in May of 2009, a front-page story in the New York Times reported the dramatic decision of Christine Varney-the Obama Administration's new Antitrust Division head at the Department of Justice-to jettison the entire report on …
Obama's Antitrust Agenda, Daniel A. Crane
Obama's Antitrust Agenda, Daniel A. Crane
Articles
Antitrust law is back in vogue. After years in the wilderness, antitrust enforcement has reemerged as a hot topic in Washington and in the legal academy. In one heady week inMay of 2009, a frontpage story in the New York Times reported the dramatic decision of Christine Varney —theObama administration’s new AntitrustDivision head—to jettison the entire report onmonopolization offenses released by the Bush JusticeDepartment just eightmonths earlier. In a speech before the Center for American Progress, Varney announced that the Justice Department is “committed to aggressively pursuing enforcement of Section 2 of the Sherman Act.” As if to prove that …
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Articles
Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.
Giles V. California: A Personal Reflection, Richard D. Friedman
Giles V. California: A Personal Reflection, Richard D. Friedman
Articles
In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Withdrawal: The Roberts Court And The Retreat From Election Law, Ellen D. Katz
Articles
Last Term the Supreme Court handed down four decisions that upheld diverse efforts by state governments to regulate the electoral process. The Court turned back challenges to New York’s method for nominating judicial candidates, Washington’s modified blanket primary system, Indiana’s voter identification requirement, and Alabama’s use of gubernatorial appointment to fill county commission vacancies in Mobile County. Unlike other recent election decisions, these were not close cases. All nine Justices supported the New York holding, while supermajorities voted in favor of the result in the others. This consensus, moreover, emerged even as the Court voted to reverse unanimous decisions by …
From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz
From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz
Articles
In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the U.S. Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One (NAMUDNO) v. Holder. Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago. Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified …
Barack Obama, Margarita Lopez Torres, And The Path To Nomination, Ellen D. Katz
Barack Obama, Margarita Lopez Torres, And The Path To Nomination, Ellen D. Katz
Articles
Operating within these regimes, Obama was able to mount a credible--and ultimately successful--challenge to the leadership's choice for the nomination while Lopez Torres could not. This article offers an explanation why. It argues that Obama succeeded where Lopez Torres failed because the nomination process Obama traversed was more penetrable and more contestable than the one Lopez Torres faced.
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Articles
In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …