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1997

Supreme Court of the United States

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Full-Text Articles in Law

Treating Sexual Harassment With Respect, Anita Bernstein Dec 1997

Treating Sexual Harassment With Respect, Anita Bernstein

Faculty Scholarship

No abstract provided.


A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret Dec 1997

A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret

Michigan Law Review

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to ...


The Supreme Court, 1996 Term: Leading Cases, Dana Brakman Reiser Nov 1997

The Supreme Court, 1996 Term: Leading Cases, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.


Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders Nov 1997

Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders

Michigan Law Review

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject ...


The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal Nov 1997

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature ...


Section 9: Also This Term, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 9: Also This Term, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 8: Federalism: A Court In Search Of Itself, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 8: Federalism: A Court In Search Of Itself, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 7: Business, Commerce, And Property, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 7: Business, Commerce, And Property, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 6: Civil Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 6: Civil Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 5: Speech And Elections, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 5: Speech And Elections, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 4: Criminal Law & Procedure, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 4: Criminal Law & Procedure, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 2: Moot Court, Piscataway Township Board Of Education V. Taxman, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 2: Moot Court, Piscataway Township Board Of Education V. Taxman, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Overview Of The Supreme Court, Institute Of Bill Of Rights Law At The William & Mary Law School Oct 1997

Section 1: Overview Of The Supreme Court, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


A Postscript On Vmi, Elizabeth M. Schneider Oct 1997

A Postscript On Vmi, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.


Comment: Seminole Tribe V. Florida, Gordon G. Young Oct 1997

Comment: Seminole Tribe V. Florida, Gordon G. Young

Faculty Scholarship

No abstract provided.


Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld Aug 1997

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old ...


On-Call Time Under The Fair Labor Standards Act, Eric Phillips Aug 1997

On-Call Time Under The Fair Labor Standards Act, Eric Phillips

Michigan Law Review

Economic pressures, changing family structures, and technology have increasingly blurred the line between work time and personal time. The rise of independent contracting, the growing number of families in which both parents work, and the. expanding reach of computer networks, fax machines, pagers, and mobile telephones, to provide a few examples, have blurred the once-familiar distinction between work time and leisure time. This distinction is particularly unclear for on-call employees. An on-call employee is one who may be physically away from the workplace but who remains connected to it by telephone, beeper, computer, or radio, and who must respond to ...


On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors Paul F. Rothstein, Et. Al., Office Of The President V. Office Of Independent Counsel, Paul F. Rothstein, Ronald J. Allen, Margaret A. Berger, William J. Bridge, Paul C. Giannelli, Stephen Gillers, Laird C. Kirkpatrick, David P. Leonard, Miguel A. Mendez, Roger C. Park, Myrna S. Raeder, John W. Reed, Mark Reutlinger, Leo M. Romero, Stephen A. Saltzburg, Peter Tillers Jun 1997

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors Paul F. Rothstein, Et. Al., Office Of The President V. Office Of Independent Counsel, Paul F. Rothstein, Ronald J. Allen, Margaret A. Berger, William J. Bridge, Paul C. Giannelli, Stephen Gillers, Laird C. Kirkpatrick, David P. Leonard, Miguel A. Mendez, Roger C. Park, Myrna S. Raeder, John W. Reed, Mark Reutlinger, Leo M. Romero, Stephen A. Saltzburg, Peter Tillers

U.S. Supreme Court Briefs

This Court should grant review not only because this is a case of national importance and prominence, but also because the decision below is a conspicuous departure from settled principles of evidence law. The panel majority concluded that communications between government lawyers and government officials are not protected by the attorney-client privilege, at least when those communications are sought by a federal grand jury. That conclusion conflicts with the predominant common-law understanding that the attorney-client privilege applies to government entities and that where the privilege applies, it is absolute (i.e., it protects against disclosure in all types of legal ...


Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein Jun 1997

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Michigan Law Review

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of ...


The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg Jun 1997

The Immovable Object Versus The Irresistable Force: Rethinking The Relationship Between Secured Credit And Bankruptcy Policy, Lawrence Ponoroff, F. Stephen Knippenberg

Michigan Law Review

The last leaf in O. Henry's classic short story was hanging by a delicate thread, but it never fell. It never fell, of course, because it wasn't real; Old Behrman had painted it (and caught pneumonia for his trouble) in order to give Johnsy the will to live. The Supreme Court's decision in Dewsnup v. Timm is also hanging by a thread, following a barrage of scholarly criticism and more than four years of limiting case law and legislative incursions on the case's core conceptual rationale. But the holding in Dewsnup, unlike the last leaf, is ...


Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector Jun 1997

Awarding Attorney's Fees To Pro Se Litigants Under Rule 11, Jeremy D. Spector

Michigan Law Review

Among the myriad rules and statutes designed to curb litigation abuse, Rule 11 of the Federal Rules of Civil Procedure ("FRCP") is "the most widely used and most controversial of the sanctions rules." The increased use of Rule ll during the last fifteen years and the recent proliferation of fee-shifting provisions in federal statutes4 have led to an onslaught of motions for attorney's fees in the federal district courts. Simultaneously, these courts are seeing an increasing number of pro se litigants appear before them. The confluence of these two trends has produced the seemingly paradoxical result of pro se ...


The "Solely Criminal Purpose" Defense To The Enforcement Of Irs Summonses, Darius J. Mehraban Jun 1997

The "Solely Criminal Purpose" Defense To The Enforcement Of Irs Summonses, Darius J. Mehraban

Michigan Law Review

Recent years have witnessed a gradual erosion of the practical distinctions between the civil and criminal investigations performed by federal administrative agencies. This trend arose naturally from a growing number of federal statutes and regulations that carry both civil and criminal penalties for their violation. Administrative agencies today wield investigative summons power almost as expansive as the grand jury subpoena power and can use that power to investigate without first deciding whether criminal or civil liability ultimately will be sought. The Internal Revenue Service (IRS) has participated to some extent in this intermingling of civil and criminal inquiry - with a ...


Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton May 1997

Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton

William & Mary Bill of Rights Journal

Before his appointment to the Supreme Court, Justice Robert H. Jackson played a highly visible role in Franklin D. Roosevelt's failed "court packing plan. " Roosevelt's legislation would have increased the size of the Supreme Court and could have dramatically altered the functioning of our government. Jackson supported the plan from his post as Assistant Attorney General. This Article uses a chronological narrative to examine Jackson's role in Roosevelt's court fight. The Article examines his role in light of the surrounding history and the tension between the backers of the New Deal and the Supreme Court. Jackson ...


An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers Mar 1997

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part ...


The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher Mar 1997

The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher

Michigan Law Review

Like it or not, the attack on "bizarrely" shaped majority-minority electoral districts is now firmly underway. Nearly four years have passed since the Supreme Court first announced in Shaw v. Reno that a state's redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" may violate the Equal Protection Clause. Such a district, the Court held, reinforces racial stereotypes, carries us further from the goal of a political system in which race no longer matters, and "threatens to undermine our system ...


The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford Mar 1997

The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford

Michigan Law Review

Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion, the Justices have decided abortion cases with reference to such weighty matters as religious freedom, the disadvantaged position of women in society, and the proper role of the judiciary. Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education in their importance to the nation. While the Court has focused on the big issues, however, it has neglected an equally important, if less ...


Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger Mar 1997

Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger

Michigan Law Review

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation ...


An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers Mar 1997

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers

Michigan Law Review

John and Janet lived for most of their early years together in a townhouse in Manhattan. It was a rental, a two-story walk-up on the Upper West Side with barely enough room for the two of them, and it ate up most of their income so that they were barely able to save anything. "Wait a minute," John said one day, "we're paying almost as much for this dump as we'd pay for a mortgage on a nice house!" So the two of them looked over their finances. Not much there. A few thousand and a 401(k ...


Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc. (Symposium), Evelyn Brody Feb 1997

Hocking The Halo: Implications Of The Charities' Winning Briefs In Camps Newfound/Owatonna, Inc. (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.