Jurisprudence Commons^™

The Death Knell And The Wild West: Two Dangers Of Domestic Discovery In Foreign Adjudications, Shay M. Collins

Michigan Law Review

Under 28 U.S.C. § 1782(a), parties to foreign legal proceedings can obtain discovery orders from United States federal courts. In other words, if a foreign party needs physical evidence located in—or testimony from a person residing in—the United States to support their claim or defense, they can ask a district court to order the production of that evidence. For almost two decades, § 1782(a) practice has operated as a procedural Wild West. Judges routinely consider § 1782(a) applications ex parte—that is, without giving the parties subject to the resulting discovery orders a chance to oppose them—and grant those applications at …

The Politics Of Proportionality, Nelson Tebbe, Micah Schwartzman

Michigan Law Review

A Review of How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart. By Jamal Greene.

More Than Just A Factfinder: The Right To Unanimous Jury Sentencing In Capital Cases, Richa Bijlani

Michigan Law Review

For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more …

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

The Quantum Of Suspicion Needed For An Exigent Circumstances Search, Kit Kinports

University of Michigan Journal of Law Reform

For decades, the United States Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still, others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

To resolve this conflict and provide guidance to law enforcement …

The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis

University of Michigan Journal of Law Reform

The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …

The Preliminary Injunction Standard: Understanding The Public Interest Factor, M Devon Moore

Michigan Law Review

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, …

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

Whiteness At Work, Lihi Yona

Michigan Journal of Race and Law

How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized …

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Michigan Law Review

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether …

The Rhetorical Canons Of Construction: New Textualism's Rhetoric Problem, Charlie D. Stewart

Michigan Law Review

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their …

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

Use Your Words: On The "Speech" In "Freedom Of Speech", Leslie Kendrick

Michigan Law Review

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Michigan Law Review Online

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first—the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as it …

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Running From The Gender Police: Reconceptualizing Gender To Ensure Protection For Non-Binary People, Katie Reineck

Michigan Journal of Gender & Law

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how …

Defective Construction Cgl Coverage: The Subcontractor Exception, Christian H. Robertson Ii

Michigan Business & Entrepreneurial Law Review

In the construction industry, commercial general liability (CGL) insur-ance is the standard policy for managing property damage risks. Histori-cally, CGL policies do not cover an insured’s own defective construction because the insured controls its own work and can reasonably foresee the damage that may result from defective work. But what about the defective work of an insured’s subcontractor? Practical considerations limit an in-sured’s effective control of every aspect of a subcontractor’s work, and this limitation complicates the insured’s ability to foresee future risks. In 1986, the increasing involvement of subcontractors led general contractors to in-sist upon protection from subcontractor work …

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

Sally Yates, Ronald Dworkin, And The Best View Of The Law, W. Bradley Wendel

Michigan Law Review Online

What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Defining Ambiguity In Broken Statutory Frameworks And Its Limits On Agency Action, Amanda Urban

Michigan Journal of Environmental & Administrative Law

“The Problem” occurs when a statute’s provisions become contradictory or unworkable in the context of new or unforeseen phenomena, yet the statute mandates agency action. The application of an unambiguous statutory provision may become problematic or unclear. Similarly, unambiguous provisions may become inconsistent given a particular application of the statute. During the same term, in Scialabba and UARG, the Supreme Court performed a Chevron review of agency interpretations of statutes facing three variations of the Problem, which this Note characterizes as direct conflict, internal inconsistency, and unworkability. In each case, the Court defined ambiguity in various, nontraditional ways and …

Superfund Chaos Theory: What Happens When The Lower Federal Courts Don't Follow The Supreme Court, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties.

The Supreme Court, when it rendered its decision, seemed to be rectifying a …

Thin Rationality Review, Jacob Gersen, Adrian Vermeule

Michigan Law Review

Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an …

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional …