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Articles 1 - 30 of 88
Full-Text Articles in Law
Deference And Disability Discrimination, Rebecca Hanner White
Deference And Disability Discrimination, Rebecca Hanner White
Michigan Law Review
For thirty-five years, the civil rights community has paid scant attention to administrative law principles. Those interested in advancing on-the-job equality for this country's working men and women (or in preserving employer autonomy vis-a-vis federal encroachment) have all but ignored what many consider the arcane technicalities of administrative law. This state of affairs is strange when one considers that administration and enforcement of each of our major federal laws outlawing employment discrimination have been confided to an administrative agency, the Equal Employment Opportunity Commission ("EEOC"). The EEOC, however, has historically been given short shrift by litigants and by the judiciary. …
The Exclusion Of Hiv-Positive Immigrants Under The Nicaraguan Adjustment And Central American Relief Act And The Haitian Refugee Immigration Fairness Act, Statutory Interpretation, Communicable Disease, Public Health, Legislative Intent, Shayna S. Cook
Michigan Law Review
The United States has turned away immigrants infected with the human immunodeficiency virus ("HIV") under the public health exclusion of the Immigration and Nationality Act ("INA") since the mid-1980's. Since Congress codified the HIV exclusion in 1993, any alien applying for an immigrant or nonimmigrant visa, adjustment of status to lawful permanent resident, or refugee status must first have a blood test for HIV. The HIV exclusion is not absolute, however. Each HIV-positive alien can apply for one of two waivers of the HIV exclusion that are available in the INA. When an alien applies for immigrant or permanent resident …
Proactive Legislation And The First Amendment, Stuart Minor Benjamin
Proactive Legislation And The First Amendment, Stuart Minor Benjamin
Michigan Law Review
It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind. The solution, according to some, is for the government to act proactively - before a harm has arisen, so that the government …
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman
Michigan Law Review
The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
Michigan Law Review
In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Michigan Law Review
In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney's careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney's claims, however, these refinements reinforce - rather than undermine - the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in …
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Michigan Law Review
In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …
Establishing Inevitability Without Active Pursuit: Defining The Inevitable Discovery Exception To The Fourth Amendment Exclusionary Rule, Stephen E. Hessler
Establishing Inevitability Without Active Pursuit: Defining The Inevitable Discovery Exception To The Fourth Amendment Exclusionary Rule, Stephen E. Hessler
Michigan Law Review
Few doctrines of constitutional criminal procedure generate as much controversy as the Fourth Amendment exclusionary rule. Beyond the basic mandate of the rule - that evidence obtained in violation of an individual's right to be secure against unreasonable search and seizure is inadmissible in a criminal proceeding - little else is agreed upon. The precise date of the exclusionary rule's inception is uncertain, but it has been applied by the judiciary for over eight decades. While the Supreme Court has emphasized that the rule is a "judicially created remedy," and not a "personal constitutional right," this characterization provokes argument as …
Assessing The New Judicial Minimalism, Christopher J. Peters
Assessing The New Judicial Minimalism, Christopher J. Peters
All Faculty Scholarship
In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …
The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz
The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz
Faculty Publications
No abstract provided.
Section 1: Ferguson V. City Of Charleston, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Ferguson V. City Of Charleston, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 10: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Section 10: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 8: The Environment, Institute Of Bill Of Rights Law, William & Mary Law School
Section 8: The Environment, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 2: The Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: The Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 3: The 2000 Election And The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: The 2000 Election And The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: Criminal Law & Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal Law & Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 8: Looking Ahead: Upcoming Issues In The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 8: Looking Ahead: Upcoming Issues In The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin
Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin
Faculty Publications
No abstract provided.
Trends. Homosexual Politics And Security: The American Psychological Association (Apa) Brief Of Amicus Curiae No. 99-699, Ibpp Editor
International Bulletin of Political Psychology
This article discusses the American Psychological Association's (APA's) brief of amicus curiae, which the APA submitted in order to provide a context for the Supreme Court of the United States to review the policy of the Boy Scouts of America and Monmouth Council, Boy Scouts of America, which involved the Boy Scouts, homosexuality, and claims about discrimination against homosexuals.
Incitement To Violence On The World Wide Web: Can Web Publishers Seek First Amendment Refuge?, Lonn Weissblum
Incitement To Violence On The World Wide Web: Can Web Publishers Seek First Amendment Refuge?, Lonn Weissblum
Michigan Telecommunications & Technology Law Review
The purpose of this comment is to analyze the potential First Amendment implications of the appearance of bomb-making instructions on the Web in the United States. Moreover, this comment will ultimately consider the notion that "because Brandenburg allows consideration of all the unique characteristics of the Web, there is no reason to formulate new jurisprudence merely because of new technology." Part II examines the seminal cases in the area of speech action, including Schenck v. United States, Hess v. Indiana, and Brandenburg v. Ohio, and the adulations and criticisms that resulted from these cases. Part III discusses the civil cases …
Justice Bushrod Washington And The Age Of Discovery In American Law, David A. Faber
Justice Bushrod Washington And The Age Of Discovery In American Law, David A. Faber
West Virginia Law Review
No abstract provided.
"Ready? Induce. Sting!": Arguing For The Government's Burden Of Proving Readiness In Entrapment Cases, David D. Tawil
"Ready? Induce. Sting!": Arguing For The Government's Burden Of Proving Readiness In Entrapment Cases, David D. Tawil
Michigan Law Review
For over 100 years the United States judiciary has struggled with the sting and the entrapment defense, examining whether government agents deviously manufacture crimes or merely afford criminals the opportunity to commit them. The sentiments of Justice Holmes were rare for his time, but today they are reflected in a growing sympathy for sting victims. While courts are now more willing than ever to find entrapment, they still differ over the burden of proof that the government must satisfy to overthrow an entrapment defense. Specifically, courts disagree about whether the burden includes proof that the defendant had the ability and …
Miranda'S Fall?, Kenji Yoshino
Miranda'S Fall?, Kenji Yoshino
Michigan Law Review
If one wishes to revisit a classic, Albert Crunus's The Fall is a riskier choice than Harper Lee's To Kill a Mockingbird, which Steven Lubet eloquently discussed last year in these pages. It is not only that Camus's work will be less familiar to legal audiences than Lee's, despite the fact that The Fall is becoming recognized through critical "revisitation" as perhaps Crunus's greatest novel. It is also that the legal protagonist of The Fall, Jean-Baptiste Clamence, does not have Atticus Finch's immediate appeal. Finch is idealistic, Clamence is existential; Finch is pious, Clamence is debauched; Finch is hopeful, Clamence …
Casting Light On Cultural Property, John J. Costonis
Casting Light On Cultural Property, John J. Costonis
Michigan Law Review
Theorists of private property invite comparison to theorists of light. For centuries, the latter have debated whether light is best understood as a wave or as a photon. The rivalry has been intense because each hypothesis explains some characteristics of light very well, but others very poorly. Wave theory outstrips photon theory in explaining such phenomena as light's frequencies and diffraction patterns. But photon theory, which reduces light to a succession of particles, more effectively explains such subatomic phenomena as changes in an atom's orbital shell produced by the interaction of photons and electrons. Property theorists too can be viewed …
Who "Owns" A Cultural Treasure?, Jason Y. Hall
Who "Owns" A Cultural Treasure?, Jason Y. Hall
Michigan Law Review
Because of the thoughtfulness of its arguments, the range and depth of its presentation of specific cases, and the fairness with which it reveals, thinks through, and allows some validity to opposing points of view, Playing Darts with a Rembrandt is a valuable contribution to understanding which parties have, and should have, rights in key objects that comprise our collective heritage. That I am not persuaded by some of the specific arguments in the book in no way reduces my admiration for what it accomplishes.
Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji
Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji
Michigan Law Review
Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Losing Faith: America Without Judicial Review?, Erwin Chemerinsky
Michigan Law Review
In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …