Jurisprudence Commons^™

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

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

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 …

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 …

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …

Race Nuisance: The Politics Of Law In The Jim Crow Era, Rachel D. Godsil

Michigan Law Review

This Article explores a startling and previously unnoticed line of cases in which state courts in the Jim Crow era ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These "race-nuisance" cases complicate the view of most legal scholarship that state courts during the Jim Crow era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiances to both precedent and the pursuit of racial exclusivity. Surprisingly, the allegiance to precedent generally prevailed. The cases confound prevailing …

Congressional Repair Of The Erie Derailment, Leonard V. Quigley

Michigan Law Review

It is the thesis of this article that such legislative review and repair is required today on the part of the federal legislature in regard to the diversity jurisdiction of the federal courts. Such reconsideration is particularly appropriate where, as in the analogous commerce clause area, the subject matter has been committed specifically to the Congress by the Constitution.

Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey

Michigan Law Review

A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.

"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field

Michigan Law Review

Despite its vaunted reputation for rectitude, the United States Supreme Court has been the first to deny its own judicial infallibility. For in at least ninety decisions, dating as far back as 1810 and as recent as its 1956 Term, the Supreme Court has made public confession of error by overruling its previous determinations.

This is a study of those ninety decisions-a statistical accounting of overruling cases and cases overruled, and a listing of the judges who agreed and disagreed with what was said and done. And this is a study of the "right to be wrong" -an inquiry into …

Constitutional Law-Stare Decisis

Michigan Law Review

The defendant corporation, a lessee of school lands from the state of Oklahoma, protested the right of the Commissioner of Internal Revenue to tax its net income. Held, under the rule of Gillespie v. Oklahoma, the income cannot be taxed without interfering with a state instrumentality. Four dissenting justices-Stone, Brandeis, Roberts, and Cardozo--admitted the applicability but denied the wisdom of the Gillespie case and the inability of the court to overrule itself, in Burnet v. Coronado Oil and Gas Co.

Doctrine Of Stare Decisis, Edward B. Whitney

Michigan Law Review

I am requested to present a paper whose theme is suggested by the Present Problems of Private Law, as distinguished from law that has a constitutional or international aspect. I doubt whether there is any other section of the Congress whose themes are so difficult to select. We cover, indeed, those branches that mainly concern the ordinary, plain, steady-going, stay-at-home, law-abiding citizen,-that multitude of questions among which most legal practitioners everywhere are wearing out their lives; working every day and all day upon Present Problems of Private Law. Each of those problems interests the parties to the particular litigation or …