Law Commons^™

What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley

St. Mary's Law Journal

Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause …

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

Horizontal Erie And The Presumption Of Forum Law, Michael Steven Green

Michigan Law Review

According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state's supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state's supreme court would. Horizontal Erie is such a plausible idea that one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister-state law. And state courts have taken advantage of this freedom, by routinely presuming that …

Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole

St. Mary's Law Journal

Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …

What Does Graham Mean In Michigan?, Kimberly A. Thomas

Articles

In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.

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. …

Choosing Those Who Will Die: The Effect Of Race, Gender, And Law In Prosecutorial Decision To Seek The Death Penalty In Durham County, North Carolina, Isaac Unah

Michigan Journal of Race and Law

District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in …

Judge William Wayne Justice: A Life Of Human Dignity And Refractory Mules Tribute., Albert H. Kauffman

St. Mary's Law Journal

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

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.

Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum

Michigan Journal of Race and Law

Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham

St. Mary's Law Journal

The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

Articles

This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

A Decade Of Colorado Supreme Court Water Decisions, 1996-2006: Special Report, Colorado Foundation For Water Education

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Justice Greg Hobbs, Colorado Supreme Court

31 pages.

Includes color illustrations and map

"Acknowledgments: This special report highlights important features of Colorado Supreme Court water decisions handed down between 1996 and 2006. It contains excerpts from opinions authored by Justices Lohr, Vollack, Mullarkey, Kourlis, Hobbs, Martinez, Bender, Rice, Coats and Eid. It is adapted from an article that first appeared in The Water Report (www.thewaterreport.com), February 15, 2007, used with permission."

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

No abstract provided.

But I Didn't Do Anything Wrong: Revisiting The Rights Of Non-Offending Parents In Child Protection Proceedings, Vivek Sankaran

Articles

Steven, a minor living with his mother, enjoyed a nurturing relationship with his father, Mark. He saw his father every weekend and looked forward to their time together. Mark looked for ways in which to stay involved in his child's life. Two days ago, the Department of Human Services (DHS) removed Steven from his mother's custody because, unbeknown to Mark, Stevens mother was selling drugs in the home. At the time of removal, the police did not inquire about the whereabouts of Stevens father; DHS immediately placed Steven in a foster home.

The Passage Of Community Property Laws, 1939-1947: Was "More Than Money" Involved?, Jennifer E. Sturiale

Michigan Journal of Gender & Law

Part I of this article reviews the legal landscape that provided the backdrop against which Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania later adopted community property laws. It also examines the tax consequences of the two Supreme Court cases, Lucas v. Earl and Poe v. Seaborn, that resulted in the disparate tax treatment of married couples in common law and community property law states. Part II briefly reviews the subsequent passage of community property laws by Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania; the passage of a federal tax reduction bill that provided for equal treatment of community property law and …

Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez

St. Mary's Law Journal

Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.

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

Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman

St. Mary's Law Journal

The doctrine of equivalents, which Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. threatens to overturn, is an equitable doctrine and should therefore provide patentees and competitors equal and fair protection. Prior to Festo, the Federal Circuit used two approaches: the complete bar rule and the flexible bar rule. Under the complete bar rule, the author must completely copy the patented art for infringement to occur, this is otherwise known as literal infringement. In contrast, under the flexible bar rule, infringement can occur if the product is closely related to the prior art. Federal Circuits have officially adopted the complete …

The De Facto Termination Of Alaska Native Sovereignty: An Anomaly In An Era Of Self-Determination, Benjamin W. Thompson

American Indian Law Review

No abstract provided.

Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman

Articles

The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …

The United Mall Of America: Free Speech, State Constitutions, And The Growing Fortress Of Private Property, Jennifer Niles Coffin

University of Michigan Journal of Law Reform

Scholars have called the shopping mall the modern replacement for the traditional town square, a claim that is supported by both public investment in infrastructure through municipal and state bond issues and by the presence of public services and events in many malls. Mall owners and tenants have exploited this quasi public character by inviting government agencies to become tenants in the malls ("City Hall at the Mall") despite claiming that malls are private property where constitutionally protected freedoms do not apply. After an initial and shortlived ruling that mall visitors do indeed have free speech rights, the Supreme Court …

On The Meaning And Impact Of The Physician-Assisted Suicide Cases, Yale Kamisar

Book Chapters

I read every newspaper article I could find on the meaning and impact of the U.S. Supreme Court's June 1997 decisions in Washington v Glucksberg and Vacco v Quill. I came away with the impression that some proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its rulings in the PAS cases.