Law Commons^™

The Case For Appellate Court Revision, Joseph F. Weis Jr.

Michigan Law Review

A Review of Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals by Thomas E. Baker

Transfer And Choice Of Federal Law: The Appellate Model, Robert A. Ragazzo

Michigan Law Review

In light of recent developments, a reexamination of the position that transferee federal law applies regardless of the context is in order. This article argues that the consensus that existed prior to the Marcus article and the Korean Air Lines case, although not based upon the most thorough analysis, comprises the better view: transferee federal law should apply after permanent but not MDL transfers.

Federal Common Law And Gaps In Federal Statutes: The Case Of Erisa Plan Limitation Periods For Section 502(A)(1)(B) Actions, Jim Greiner

Michigan Law Review

This Note argues that federal courts should adopt a uniform national rule that upholds plan provisions modifying the limitation period for a section 502(a)(l)(B) action. Part I examines the reasoning of those courts that have borrowed state law to determine the validity of modifications of the limitation period applicable to actions arising under BRISA section 502(a)(l)(B) and under other federal statutes. Part I argues that those courts may have incorrectly characterized the validity of plan limitation periods as an issue of limitation law. As a consequence of this characterization, those courts have followed the Supreme Court's rule that, when borrowing …

Congressional Commentary On Judicial Interpretations Of Statutes: Idle Chatter Or Telling Response?, James J. Brudney

Michigan Law Review

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective …

Incorporating The Suspension Clause: Is There A Constitutional Right To Federal Habeas Corpus For State Prisoners?, Jordan Steiker

Michigan Law Review

In the early 1960s, the Supreme Court adopted generous standards governing federal habeas petitions by state prisoners. At that time, the Court suggested, rather surprisingly, that its solicitude toward such petitions might be constitutionally mandated by the Suspension Clause, the only provision in the Constitution that explicitly refers to the "Writ of Habeas Corpus." Now, thirty years later, the Court has essentially overruled those expansive rulings, and Congress has considered, though not yet enacted, further limitations on the availability of the writ. Despite these significant assaults on the habeas forum, the constitutional argument appears to have been entirely abandoned. The …

Removal And The Eleventh Amendment: The Case For District Court Remand Discretion To Avoid A Bifurcated Suit, Mitchell N. Berman

Michigan Law Review

This Note concludes that the Sixth Circuit was half right: when a civil action names both state and private defendants - what this Note terms a "mixed case" - and when the claims against private defendants arise under federal law, the district court must grant removal of the case8 and must remand the claims against the state defendant. However, this Note also observes that the Fifth Circuit probably achieved the better result. After defendants have removed a mixed case to federal court and the district court has remanded the barred claims, the dual court systems and the parties will usually …

An Intent-Based Approach To The Acceptance Of Benefits Doctrine In The Federal Courts, Benson K. Friedman

Michigan Law Review

This Note discusses the question of when federal courts should allow a party who accepts payment of a judgment subsequently to appeal the deficiency of the award. Part I examines the discrepancies currently existing in the acceptance of benefits doctrine as applied by the federal courts. Part II analogizes this issue to the law of implied-in-fact contracts and argues that accepting the benefits of a judgment should not prevent an appeal unless circumstances clearly indicate a mutual intent to settle all claims and thereby terminate litigation. Part III contends that, under the doctrine expressed in Erie Railroad v. Tompkins, …

Constitutional Judgment, Gene R. Nichol

Michigan Law Review

A Review of Constitutional Interpretation by Philip Bobbitt

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

Retroactive Application Of The Civil Rights Act Of 1991 To Pending Cases, Michele A. Estrin

Michigan Law Review

This Note addresses the applicability of the Civil Rights Act of 1991 to cases pending on the Act's date of enactment. Part I discusses current Supreme Court doctrine on the issue. This Part finds that the Court has endorsed two conflicting views on retroactively applying statutes to pending cases and that the lower federal courts consequently lack a principled framework for dealing with retroactivity issues in the 1991 Act. Part II describes the battle over the Civil Rights Acts of 1990 and 1991 and the subsequent confusion over the enacted statute's reach. This Part finds that Congress provided conflicting textual …

The Federal Courts In The Political Order: Judicial Jurisdiction And American Political Theory, James Hopenfeld

Michigan Law Review

A Review of The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory by Martin H. Redish

Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi

Michigan Law Review

This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …

Employer Recapture Of Erisa Contributions Made By Mistake: A Federal Common Law Remedy To Prevent Unjust Enrichment, J. Daniel Plants

Michigan Law Review

This Note investigates more fully the policies animating ERISA in order to ascribe an appropriate construction to the mistaken contribution section. Part I analyzes the Ninth Circuit's anomalous implied cause of action theory. Searching the legislative history as well as ERISA's language and structure, this Part finds lacking the requisite expression of congressional intent to support a statutorily implied remedy. As an alternative, Part II explores the appropriateness of common law relief. Part II defends the creation of common law relief by the federal courts as consistent with the direct and indirect evidence suggesting that Congress envisioned judicial supplementation of …

Treatise Writing And Federal Jurisdiction Scholarship: Does Doctrine Matter When Law Is Politics?, Richard A. Matasar

Michigan Law Review

A Review of Federal Jurisdiction by Erwin Chemerinsky and Federal Jurisdiction 1990 Supplement by Erwin Chemerinsky

Errors In Good Faith: The Leon Exception Six Years Later, David Clark Esseks

Michigan Law Review

Given this vast literature on the good faith exception, little room appears to exist for additional commentary on the propriety of the decision, its theoretical weaknesses or strengths, or what further changes in constitutional criminal procedure it forebodes. This Note will not add to the many voices complaining of the Court's misconstrual of the grounding of the exclusionary rule, nor of its crabbed notion of deterrence. Instead, it accepts, arguendo, the propriety of the exception and its underlying purpose, and then examines the six-year experience with the revised rule. The proliferation of reported applications of the good faith exception …

Selecting Law Clerks, Patricia M. Wald

Michigan Law Review

April may indeed have been "the cruellest month" this year for federal judges and their prospective clerks. For a decade now, federal judges have been trying - largely without success - to conduct a dignified, collegial, efficient law clerk selection process. Because each federal judge has only to choose two to three clerks each year, and there is a large universe of qualified applicants graduating each year from our law schools, this would not seem an insurmountable task. And because each federal judge has choice first-year positions to offer and has no need or ability to dicker on salary or …

Chadha, Abner J. Mikva

Michigan Law Review

A Review of Chadha by Barbara Hinkson Craig

The Myth Of The Disposable Opinion: Unpublished Opinions And Government Litigants In The United States Courts Of Appeals, Lauren K. Robel

Michigan Law Review

This article discusses the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions. It also discusses the results of a survey conducted to determine if, and how, government litigants - some of the chief unanticipated beneficiaries of the publication plans make use of unpublished opinions. Finally, it challenges the assumption that limited publication is essential in an age of caseload crisis.

Regulating Judicial Misconduct And Divining "Good Behavior" For Federal Judges, Harry T. Edwards

Michigan Law Review

In recent years, we have witnessed an unprecedented number of instances in which federal judges have been accused of criminal behavior and other serious acts of misconduct. This raises major concerns regarding the scope and enforcement of canons of conduct for members of the judicial branch. It would be presumptuous for anyone to suggest a complete understanding of the notion of "good behavior" for federal judges, or to claim a fully satisfactory prescription for the problem of "judicial misconduct." That is not my object. In reflecting on these issues, however, I have come to realize that I may not share …

Federal Court Review Of Arbitrary State Court Decisions, David T. Azrin

Michigan Law Review

Part I of this Note argues that the Thompson, Logan, and Hicks cases can be read narrowly to deal primarily with concern about protecting specific constitutional guarantees such as criminal procedural protections, equal protection guarantees, and first amendment freedoms. Arguably, in order to avoid dealing explicitly with the broader constitutional questions raised by the state decisions, the Court reversed the state decisions as arbitrary interpretations of state law. Part II argues that the rule against arbitrary state decisions suggested by Thompson, Logan, and Hicks is incompatible with federalism because it interferes with states' ability to develop law over state …

A Job For The Judges: The Judiciary And The Constitution In A Massive And Complex Society, Neil K. Komesar

Michigan Law Review

This article attempts that task by exploring the elements of institutional choice in constitutional law. Part I takes an overview of the general division of decisionmaking responsibility between the political processes and the courts. It also examines the failures of existing theories to take account of this division of responsibility. Part II identifies two theories of political malfunction - those circumstances in which political processes are subject to significant doubt or distrust and, therefore, prime candidates for judicial review. Part III examines the characteristics - limits, biases, and abilities - of the judiciary and the potential for judicial response to …

Change In The Availability Of Federal Habeas Corpus: Its Significance For State Prisoners And State Correctional Programs, Franklin J. Remington

Michigan Law Review

Expressions of dissatisfaction with state prisoner use of federal writs of habeas corpus continue. Recently Attorney General Meese was reported as telling the Judicial Conference of the Seventh Circuit: "[M]ost of the writs filed today were frivolous 'recreational activities' [by inmates whom he referred to as 'lawyers in penitentiaries'] designed to harass federal authorities." Referring to the Reagan administration's proposal pending in the United States Senate to restrict habeas corpus, Mr. Meese said the bill "would preserve the great writ for appropriate cases."

Repeated, but as yet unsuccessful, efforts have been made in the Congress to narrow the scope of …

Conserving The Federal Judiciary For A Conservative Agenda?, Samuel Estreicher

Michigan Law Review

A Review of The Federal Courts: Crisis and Reform by Richard A. Posner

Attacking The Judicial Protection Of Minority Rights: The History Ploy, John E. Nowak

Michigan Law Review

A Review of Disabling America: The "Rights Industry" in Our Time by Richard E. Morgan

On The Threshold Of Wainwright V Sykes: Federal Habeas Court Scrutiny Of State Procedural Rules And Rulings, Michigan Law Review

Michigan Law Review

This Note examines specific problems which stand on the threshold of Wainwright v. Sykes. Resolution of these problems is necessary to determine whether a state ruling is based upon an adequate state procedural ground, requiring application of the cause-and-prejudice test before habeas review will be permitted. Part I analyzes the rationale for the rule of Wainwright v. Sykes as well as its historical underpinnings. Part II examines the treatment of state court decisions that are based both on a defaulted claim and, in the alternative, on the merits of that claim. This Part concludes that decisions containing such alternative …

Policymaking And Politics In The Federal District Courts, Michigan Law Review

Michigan Law Review

A Review of Policymaking and Politics in the Federal District Courts by Robert A. Carp and C.K. Rowland

Where The Money Is: Remedies To Finance Compliance With Strict Structural Injunctions, James M. Hirschhorn

Michigan Law Review

This Article examines the formal powers that are available to the federal courts to meet this situation. Part I places the problem in perspective, describing the party structure of the institutional reform decree, the :financial burdens it places on the government defendants, and the relationship of these defendants to the fiscal authorities. Part II surveys the coercive powers historically available to the federal courts sitting in equity. Part III discusses the use of these devices against government defendants who claim financial impossibility. It emphasizes the limited recognition of impossibility, the power to compel the defendants to use available resources efficiently …

Criminal Venue In The Federal Courts: The Obstruction Of Justice Puzzle, Michigan Law Review

Michigan Law Review

Courts have struggled to determine venue for cases involving obstruction of justice with similarly inconsistent results. The circuits have divided over where to lay venue in prosecutions for obstruction of justice when the defendant allegedly acted in one judicial district to obstruct a proceeding that was pending in another. This Note argues that formalistic analysis, which has led courts to set venue in the district of the affected trial, should be rejected in favor of a more policy-oriented approach. Part I demonstrates that a formalistic statutory analysis that closely inspects either legislative history or the language of the statute ultimately …

The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review

Michigan Law Review

In the wake of this uncertainty, this Note analyzes the proper scope of judicial review of consent decrees. The Note argues that to further the policies embodied in the APP A, courts should undertake intense review of proposed settlements before entering them as final judgments. Both the congressional intent in enacting the APP A and the public's interest in effective enforcement of the antitrust laws support intense judicial review. The Note then demonstrates that the deferential standard that some courts have applied is derived mainly from a case that is inapplicable to the review of consent decrees. Finally, the Note …

The Propriety Of Section 10(J) Bargaining Orders In Gissel Situations, Michigan Law Review

Michigan Law Review

The courts have split on the question of whether a bargaining order constitutes ''just and proper" relief under section 10(j). This Note contends that such an order is always just in a Gissel situation but that a district court may properly issue one only in situations where the Board's prior decisions clearly establish the relevant labor policy and indicate a high probability that the Board will eventually issue a Gissel bargaining order. Part I of the Note develops the criteria relevant to determining what kind of temporary relief is "just." Although section 10(j) does not itself define these criteria, the …