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Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg Nov 2017

Criminal Certification: Restoring Comity In The Categorical Approach, Joshua Rothenberg

University of Michigan Journal of Law Reform

Federal sentencing enhancements force federal courts to delve into the world of substantive state criminal law. Does a state assault statute require violent force or just offensive touching? Does a state burglary statute that criminalizes breaking into a car or a house require prosecutors to charge the location entered as an element? Whether a person with prior convictions convicted of violating 18 U.S.C. § 922(g) faces a minimum sentence of fifteen years and a maximum of life imprisonment rather than a maximum sentence of ten years turns upon the answers to these questions. Yet, state law often does ...


Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack Jan 2017

Child Abuse Evidence: New Perspectives From Law, Medicine, Psychology & Statistics: Opening Remarks, November 6, 2015, Bridget M. Mccormack

University of Michigan Journal of Law Reform

Opening remarks by Justice Bridget McCormack, Michigan Supreme Court on November 6, 2015.


Discretionary (In)Justice: The Exercise Of Discretion In Claims For Asylum, Kate Aschenbrenner Apr 2012

Discretionary (In)Justice: The Exercise Of Discretion In Claims For Asylum, Kate Aschenbrenner

University of Michigan Journal of Law Reform

Section 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee-that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so. This Article sets out in ...


The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman May 2010

The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman

University of Michigan Journal of Law Reform

In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan ...


Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg Jul 2005

Bayes' Law, Sequential Uncertainties, And Evidence Of Causation In Toxic Tort Cases, Neal C. Stout, Peter A. Valberg

University of Michigan Journal of Law Reform

Judges are the gatekeepers of evidence. Arguably, the most difficult duty for a judicial gatekeeper is to screen the reliability of expert opinions in scientific fields such as medicine that are beyond the ken of most judges. Yet, judges have a duty to scrutinize such expert opinion evidence to determine its reliability and admissibility. In toxic tort cases, the issue of causation-whether the alleged exposures actually caused the plaintiffs injury-is nearly always the central dispute, and determining admissibility of expert causation opinion is a daunting challenge for most judges. We present a comprehensive review of the courts' struggles with the ...


Against Dictionaries: Using Analogical Reasoning To Achieve A More Restrained Textualism, Jason Weinstein Apr 2005

Against Dictionaries: Using Analogical Reasoning To Achieve A More Restrained Textualism, Jason Weinstein

University of Michigan Journal of Law Reform

This Note argues that new textualists should abandon dictionaries as a source for legal interpretation. Textualists believe in restricting judges to the intent discernible from the words of a statute and contend that legislative history is unacceptable as a source of this intention. Both of these sentiments lead textualists to dictionaries as the intuitively correct solution for ambiguities in a text. The author argues, however, that dictionaries by their very nature cannot help discern between reasonable definitions at the margins of meaning. The use of dictionaries in these situations allows for a sham formalism, unrestrictive in result and unrevealing of ...


To Elect Or Not To Elect: A Case Study Ofjudicial Selection In New York City 1977-2002, Steven Zeidman Apr 2004

To Elect Or Not To Elect: A Case Study Ofjudicial Selection In New York City 1977-2002, Steven Zeidman

University of Michigan Journal of Law Reform

This Article examines the process of judicial selection in New York State in light of the recent court decisions in White and Spargo, which have paved the way for increased campaign speech in judicial elections. Relying on empirical data to compare judicial elections and appointments in New York City between 1977 and 2002, the Article finds that elections produce a judiciary that is more beholden to interest groups than one generated through appointments. The consequence of this greater special interest involvement is an erosion of public trust and confidence in the judiciary. Moreover while elections arguably have increased diversity in ...


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Jan 1995

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

University of Michigan Journal of Law Reform

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the ...


Diluting Justice On Appeal?: An Examination Of The Use Of District Court Judges Sitting By Designation On The United States Courts Of Appeals, Richard B. Saphire, Michael E. Solimine Jan 1995

Diluting Justice On Appeal?: An Examination Of The Use Of District Court Judges Sitting By Designation On The United States Courts Of Appeals, Richard B. Saphire, Michael E. Solimine

University of Michigan Journal of Law Reform

According to a number of studies and commentators, a serious caseload crisis faces the federal courts. With respect to the federal courts of appeals, some have called for drastic remedial measures. Until Congress responds, the courts of appeals have been forced to adopt a range of coping measures. In this article, Professors Saphire and Solimine examine one of these measures, the utilization of designated district court judges on appellate panels. After discussing the origins and extent of this practice, they identify a number of problems it raises. They argue that extensive and routine utilization of district judges on appellate panels ...


Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau Oct 1994

Restrictions On Publication And Citation Of Judicial Opinions: A Reassessment, Robert J. Martineau

University of Michigan Journal of Law Reform

In response to the "crisis of volume," state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed ...


Electronic Media Access To Federal Courtrooms: A Judicial Response, Laralyn M. Sasaki Jun 1990

Electronic Media Access To Federal Courtrooms: A Judicial Response, Laralyn M. Sasaki

University of Michigan Journal of Law Reform

This Note examines the ongoing electronic media access dispute and suggests methods to establish access. Because reform of current law would be implemented largely at the judicial "front lines"-the 700-plus U.S. district judges' courtrooms ---the concerns and desires of district judges are of primary importance to any proposed change. The survey documented an institutional resistance to an expanded media presence in federal courtrooms; this institutional inertia may be the strongest single reason that change has not occurred. Part I of this Note presents the federal rules, canons, and resolutions comprising the current prohibition against video and audio-equipment access ...


Concerned Readers V. Judicial Opinion Writers, Erik Paul Belt Apr 1990

Concerned Readers V. Judicial Opinion Writers, Erik Paul Belt

University of Michigan Journal of Law Reform

In this action, Plaintiffs sought a writ of mandamus compelling the offending judges to write better, but the court below denied the writ. Plaintiffs then petitioned for relief from poor writing. Because some judges do, in fact, write clear and effective opinions, we have granted certiorari to resolve the differences between the various courts. The issue before us, then, is whether judges and clerks have abused their discretion by writing weak opinions and, if so, how they can improve their writing. Because stronger writing greatly eases the reader's job and makes opinions more effective, we hold that judges and ...


Protecting The Independence Of Administrative Law Judges: A Model Administrative Law Judge Corps Statute, Karen Y. Kauper Jan 1985

Protecting The Independence Of Administrative Law Judges: A Model Administrative Law Judge Corps Statute, Karen Y. Kauper

University of Michigan Journal of Law Reform

This Note concludes that the federal government should adopt some form of central panel system to protect both the independence of the ALJs and the public interest. Part I of this Note presents several alternatives to the central panel systems that have been proposed in past years and discusses their inadequacies. Part II summarizes the arguments concerning the central panel system of administrative adjudication. Part III discusses several of the integral elements of a central panel system and analyzes the state statutes and the proposed federal legislation in light of these elements. Finally, Part IV proposes a model statute for ...


Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig Apr 1983

Improving Jury Deliberations: A Reconsideration Of Lesser Included Offense Instructions, Michael D. Craig

University of Michigan Journal of Law Reform

This Note approves of efforts to avoid hung juries by giving lesser included offense instructions but opposes those instructions that restrict juror decisions and coerce minority jurors. Rather, this Note offers a lesser included offense instruction that promotes flexibility and jury compromise without undermining the deliberative process. Part I describes the problem of hung juries and how courts have tried to prevent them with restrictive lesser included offense instructions. Part II analyzes the coercive impact of restrictive lesser included offense instructions and concludes that an instruction conditioning deliberations upon individual juror disagreement better promotes compromises on the merits while reducing ...


Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer Apr 1983

Habeas Corpus Review Of State Trial Court Failure To Give Lesser Included Offense Instructions, Michael H. Hoffheimer

University of Michigan Journal of Law Reform

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II ...


Oral Argument And Expediting Appeals: A Compatible Combination, Joy A. Chapper Jan 1983

Oral Argument And Expediting Appeals: A Compatible Combination, Joy A. Chapper

University of Michigan Journal of Law Reform

The purpose of this Article is to explore these issues in light of Sacramento's experience with the expedited appeal procedure. The data presented here are drawn from an evaluation of the first twelve months of the procedure's operation. This evaluation was based on court records of the more than one hundred cases that followed the expedited procedure to completion, in-person interviews with members of the court and court staff, and telephone interviews with participating attorneys. Part I briefly sets out the new procedure and the context in which this procedure was introduced and integrated. Part II discusses the ...


An Appellate Court Dilemma And A Solution Through Subject Matter Organization, Daniel J. Meador Jan 1983

An Appellate Court Dilemma And A Solution Through Subject Matter Organization, Daniel J. Meador

University of Michigan Journal of Law Reform

The recent litigation explosion presents a two-pronged dilemma for American appellate courts. If, on the one hand, the number of appellate judges is not expanded to keep abreast of growing case loads, there is a risk that courts will rely too heavily on professional staff, thereby watering down the decision-making process. If, on the other hand, the number of judges is proportionately increased with the growth in appellate litigation, the number of three-judge decisional units will also increase, thereby threatening predictability and uniformity in the law of the jurisdiction. This Article undertakes to explain that dilemma and to offer a ...


In Memoriam: Talbot Smith, Donald P. Lay Jan 1980

In Memoriam: Talbot Smith, Donald P. Lay

University of Michigan Journal of Law Reform

My goal this evening is first to reflect upon Talbot Smith's life as an unusual and gifted person and second, to underscore his career not so much as the judicial giant he was, but as a tremendous witness and teacher to all mankind.


Judicial Administration And Invisible Justice, Mary Murphy Schroeder Apr 1978

Judicial Administration And Invisible Justice, Mary Murphy Schroeder

University of Michigan Journal of Law Reform

My theme here is the conflict between the visibility of the appellate judge and recent procedural changes designed to cope with the quantum leaps in the numbers and complexity of cases. I will develop that theme, first, by suggesting the ways that three of the major controls on the system, namely the selection, evaluation, and discipline of judges, depend upon the exercise of recognizable and individual judicial responsibility; second, by illustrating how this "imperative" can be undermined if devices intended to cope with increased volume are adopted without vigilance; and finally by pointing up some approaches to permit courts to ...


Appellate Justice, Ruggero J. Aldisert Apr 1978

Appellate Justice, Ruggero J. Aldisert

University of Michigan Journal of Law Reform

Justice on Appeal is a pithy analysis of the problem facing appellate courts. Dragon hunters Carrington, Meador, and Rosenberg were not content to look at the problem from an armchair. Instead, they walked to the mouth of the cave; pulled the troublesome dragon into the light, counted its teeth, measured its girth and tail, and decided neither to kill it nor kiss it. They decided to try taming it. I agree with their analysis of the specimen, its size, its growth, and the urgent necessity to bring the beast under control. I have some modest disagreements with some of their ...


Justice On Appeal—One Way Or Many?, Michael E. Smith Apr 1978

Justice On Appeal—One Way Or Many?, Michael E. Smith

University of Michigan Journal of Law Reform

After two centuries of our nation's existence, discussions of federalism are certain to sound familiar. The ground of argument has been worked so thoroughly, there is hardly a patch left unturned. Conventional watchwords suggest the competing interests: adaptability to local circumstances contrasted with efficiencies of scale, circumscribed experimentation contrasted with prevention of forum-shopping, local self-government contrasted with the cosmopolitan perspective. The most that can be done now, absent exceptional insight, is to display these choices in a fresh context.

What follows is yet another variation on the theme. It concerns the propriety, perhaps the desirability, of diversity among the ...


The Bankruptcy Reform Process: Maximizing Judicial Control In Wage Earners' Plans, Marjorie Girth Oct 1977

The Bankruptcy Reform Process: Maximizing Judicial Control In Wage Earners' Plans, Marjorie Girth

University of Michigan Journal of Law Reform

This article examines the effort to maximize judicial control over the bankruptcy process and its impact on H.R. 8200's procedural requirements for the nonbusiness bankruptcy option known currently as the wage earners' plan. As background, it describes the present nonbusiness bankruptcy options and the statutory procedures for monitoring confirmed wage earners' plans. Then, using illustrative samples from three years of cases in the Buffalo region of the Western District of New York, it assesses whether present plans are being administered in accordance with the statutory formalities. The economic incentives which affect creditors' behavior in taking advantage of their ...


Compensation Of The Federal Judiciary: A Reexamination, Elliot A. Spoon Jan 1975

Compensation Of The Federal Judiciary: A Reexamination, Elliot A. Spoon

University of Michigan Journal of Law Reform

The compensation of the federal judiciary has been a persistent issue since the enactment of the Judiciary Act of 1789. The problem has been traditionally perceived in the context of particular proposals for salary increases, but the underlying issues are much more fundamental than the concerns of the day. The institutional arrangements by which judicial compensation is determined and the factors which shape that determination have a profound impact on the fiscal and human resources of the judiciary, on the power relationships among the three branches of the national government, and, thereby, on the independence and quality of the judicial ...


Aftermath Of Apprehension: Juvenile Court Judge's Response, John P. Steketee Dec 1969

Aftermath Of Apprehension: Juvenile Court Judge's Response, John P. Steketee

University of Michigan Journal of Law Reform

It would appear that juveniles find apprehension to be a reinforcement of their delinquent behavior. Being apprehended and questioned by the police, referred to juvenile court, meeting a probation officer, and going before a judge, not to mention the status one gains in one's group from police and/or court contact, can be a very significant chain of events for many adolescents who have never known the excitement of personal recognition by parents, school officials or even friends. For the first time, they are recognized and listened to, albeit for the wrong reasons. The attention need not be positive ...


The Fortas Controversy: The Senate's Role Of Advice And Consent To Judicial Nominations, Prospectus: A Journal Of Law Reform Apr 1969

The Fortas Controversy: The Senate's Role Of Advice And Consent To Judicial Nominations, Prospectus: A Journal Of Law Reform

University of Michigan Journal of Law Reform

Introduction to the Articles, The Broad Role by Robert P. Griffin, and The Discriminating Role by Philip A. Hart


The Broad Role, Robert P. Griffin Apr 1969

The Broad Role, Robert P. Griffin

University of Michigan Journal of Law Reform

This article will expand on two major points: first, the nature of the higher responsibility which the Senate owes to considerations of judicial nominations; and second, the factors generally influencing non-consent in the Fortas case. The purpose is not to reopen a discussion of the particularities of Justice Abe Fortas' quality for appointment as Chief Justice of the United States. Rather we will be concerned only with the types of factors influencing a Senate determination.


The Discriminating Role, Philip A. Hart Apr 1969

The Discriminating Role, Philip A. Hart

University of Michigan Journal of Law Reform

The controversy which arose in the summer of 1968 over the nomination of Mr. Justice Abe Fortas to be Chief Justice of the United States has raised serious questions about the proper role of the Senate in advising and consenting to such nominations. That Sen. Hart’s remarks may be read in perspective, it should be mentioned that he supported strongly the nomination of Mr. Fortas. Hart believes that were it not for the unique circumstances of the summer of 1968- the erosion of the power of the President with the approach of a political campaign, the nearness of the ...