Law Commons^™

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …

Sejarah Dan Perkembangan Perdagangan Bebas Internasional, Dony Prananda

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses history of world free trade after the second world war has a very long and winding history, which is also colored by the formation of international trade organizations, in which many countries who involved have antinomy thoughts, where some of them feel the world of trade needs a free trade system, resulting to negotiations and various forms of compromise. Entering the era of globalization marked by the birth of various kinds of multilateral and bilateral agreements as well as the formation of economic blocs clearly shows the relationship or linkages and dependencies between nations and people around …

You'll Grow Into It: How Federal And State Courts Have Erred In Excluding Persons Under Twenty-One From 'The People' Protected By The Second Amendment, Ryder Gaenz

FIU Law Review

After more than two centuries of jurisprudential stillness, the United States Supreme Court undertook the task of discerning the Second Amendment’s meaning in District of Columbia v. Heller, holding that the Second Amendment protects the individual right to self-defense. Since Heller, the lower courts have grappled with determining the scope of the Second Amendment. One question of scope—the subject of this piece—is at what age does a person come within the scope of the Second Amendment’s protections? Some federal and state courts have suggested, and in some cases held, that persons under twenty-one do not enjoy Second Amendment rights. However, …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.

50 Years Of Excellence: A History Of The St. Mary's Law Journal, Barbara Hanson Nellermoe

St. Mary's Law Journal

Founded in 1969, the St. Mary’s Law Journal has climbed the road to excellence. Originally built on the foundation of being a “practitioner’s journal,” the St. Mary’s Law Journal continues to produce quality scholarship that is nationally recognized and frequently used by members of the bench and bar. From its grassroots origins to the world-class law review it is today, the St. Mary’s Law Journal continues to maintain its prestigious position in the realm of law reviews by ranking in the top five percent most-cited law reviews in federal and state courts nationwide.

In celebration of the St. Mary’s Law …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

Disrespectful Dissent: Justice Scalia's Regrettable Legacy Of Incivility, J. Lyn Entrikin

The Journal of Appellate Practice and Process

No abstract provided.

Glimpses Of Marshall In The Military, Kevin C. Walsh

University of Richmond Law Review

No abstract provided.

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero, Ii

Michigan Journal of Race and Law

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and …

Paths Of Resistance To Our Imperial First Amendment, Bertrall L. Ross Ii

Michigan Law Review

In the campaign finance realm, we are in the age of the imperial First Amendment. Over the past nine years, litigants bringing First Amendment claims against campaign finance regulations have prevailed in every case in the Supreme Court. A conservative core of five justices has developed virtually categorical protections for campaign speech and has continued to expand those protections into domains that states once had the authority to regulate. As the First Amendment’s empire expands, other values give way. Four key cases from this era illustrate the reach of this imperial First Amendment. In Wisconsin Right to Life, Inc. v. …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Some Kind Of Judge: Henry Friendly And The Law Of Federal Courts, Aaron P. Brecher

Michigan Law Review

Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

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 …

But How Will The People Know? Public Opinion As A Meager Influence In Shaping Contemporary Supreme Court Decision Making, Tom Goldstein, Amy Howe

Michigan Law Review

Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than making them. Roberts promised to "remember that it's my job to call balls and strikes and not to pitch or bat." At her own recent confirmation hearings, Elena Kagan demurred, opining that Roberts's metaphor might erroneously suggest that "everything is clear-cut, and that there's no judgment in the process." Based on his 2009 book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, Barry Friedman …

Framing The Fourth, Tracey Maclin, Julia Mirabella

Michigan Law Review

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor …

"The Prejudice Of Caste": The Misreading Of Justice Harlan And The Ascendency Of Anticlassificaiton, Scott Grinsell

Michigan Journal of Race and Law

This Article reconsiders the familiar reading of Justice Harlan's dissent in Plessy v. Ferguson as standing for the principle of constitutional colorblindness by examining the significance of Harlan's use of the metaphor "caste" in the opinion. By overlooking Harlan's invocation of "caste," it argues that conservative proponents of anticlassification have reclaimed the opinion for "colorblindness," and buried a powerful statement of the antisubordination principle that is at the heart of our equality law. The Article begins by examining the emergence of a reading of the opinion as articulating a view of equality law based in anticlassification. The Article then returns …

Past As Prologue: Old And New Feminisms, Martha Chamallas

Michigan Journal of Gender & Law

Each "stage" of feminist legal theory-and each brand or strand of feminism- stays alive and is never completely replaced by newer approaches. When I first attempted to synthesize the field of Feminist Legal Theory for a treatise I was writing at the end of the twentieth century, I thought it would be useful to think chronologically and to analyze the major developments of the 1970s, 1980s, and 1990s. I crudely divided feminist legal theory into three stages roughly corresponding to the preceding decades: the equality stage of the 1970s, the difference stage of the 1980s, and the diversity stage of …

Dear President Bush: Leaving A Legacy On The Federal Bench, Carl Tobias

University of Richmond Law Review

No abstract provided.

Ideological Endowment: The Staying Power Of The Electoral College And The Weaknesses Of The National Popular Vote Interstate Compact, Daniel P. Rathbun

Michigan Law Review First Impressions

The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully …

Democratic Principle And Electoral College Reform, Ethan J. Leib, Eli J. Mark

Michigan Law Review First Impressions

The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these statebased reform options. Categorically rejecting all state-based reform is …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

University of Michigan Journal of Law Reform

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the …

The Intent Element Of Inducement To Infringe Under Patent Law: Reflections On Grokster, Lynda J. Oswald

Michigan Telecommunications & Technology Law Review

In June, 2005, the United States Supreme Court set forth an "inducement" rule in MGM Studios, Inc. v. Grokster, Ltd. that imposes secondary liability on "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement." The Court emphasized the limitations of the liability standard it was setting forth, stating that the target was only "purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Yet, the liability standard set forth in Grokster …