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Citizens United And The Corporate Form, Reuven S. Avi-Yonah 2011 University of Michigan Law School

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then ...


Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas 2011 University of Michigan Law School

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses ...


The Illusory Right To Counsel, Eve Brensike Primus 2011 University of Michigan Law School

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the ...


Disentangling Administrative Searches, Eve Brensike Primus 2011 University of Michigan Law School

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and ...


In Order To Be Silent, You Must First Speak: The Supreme Court Extends Davis's Clarity Requirement To The Right To Remain Silent In Berghuis V. Thompkins, 44 J. Marshall L. Rev. 423 (2011), Harvey Gee 2011 John Marshall Law School

In Order To Be Silent, You Must First Speak: The Supreme Court Extends Davis's Clarity Requirement To The Right To Remain Silent In Berghuis V. Thompkins, 44 J. Marshall L. Rev. 423 (2011), Harvey Gee

The John Marshall Law Review

No abstract provided.


Book Review, Derek Kiernan-Johnson 2011 University of Colorado Law School

Book Review, Derek Kiernan-Johnson

Articles

No abstract provided.


The Need To Overrule Mapp V. Ohio, William T. Pizzi 2011 University of Colorado Law School

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Articles

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level ...


From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart 2011 University of Colorado Law School

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Articles

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the Court's ...


An Unintended Casualty Of The War On Terror, Aya Gruber 2011 University of Colorado Law School

An Unintended Casualty Of The War On Terror, Aya Gruber

Articles

As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with ...


Civil Rights And Systemic Wrongs, Melissa Hart 2011 University of Colorado Law School

Civil Rights And Systemic Wrongs, Melissa Hart

Articles

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention ...


Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza 2011 Brooklyn Law School

Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza

Faculty Scholarship

No abstract provided.


Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp 2010 University of Pennsylvania Law School

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp

Faculty Scholarship

The rule of reason adopted for resale price maintenance in the Supreme Court’s Leegin decision, which upset the century old Dr. Miles rule of per se illegality, requires some reconsideration of a number of issues about antitrust treatment of RPM. Under the old per se rule, bona fide “consignment” agreements were not covered by Section 1 of the Sherman Act at all because there was said to be no qualifying “agreement” between the supplier and the dealer. Rather the dealer was simply said to be acting as an agent of the seller. However, insofar as RPM produces competitive dangers ...


Justice Souter And The Civil Rules, Scott Dodson 2010 University of California Hastings College of Law

Justice Souter And The Civil Rules, Scott Dodson

Faculty Publications

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. And what it finds is a justice deeply committed to the fair treatment of the ...


Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz 2010 University of Michigan Law School

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee ...


Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro 2010 College of William & Mary Law School

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

William & Mary Bill of Rights Journal

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have ...


Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma 2010 Capital Appeals Project

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed ...


Bridging The Gap: How United States V. Munn Correctly Interprets The Legislative Intent Of Amendment 706 Addressing The Disparity Between Crack And Cocaine Offenses, Alyn Goodson 2010 North Carolina Central University School of Law

Bridging The Gap: How United States V. Munn Correctly Interprets The Legislative Intent Of Amendment 706 Addressing The Disparity Between Crack And Cocaine Offenses, Alyn Goodson

North Carolina Central Law Review

No abstract provided.


Section 4: Business, Institute of Bill of Rights Law at The College of William & Mary School of Law 2010 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 4: Business, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 6: First Amendment, Institute of Bill of Rights Law at The College of William & Mary School of Law 2010 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 6: First Amendment, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Section 2: Elena Kagan And The Court, Institute of Bill of Rights Law at The College of William & Mary School of Law 2010 Institute of Bill of Rights Law at The College of William & Mary School of Law

Section 2: Elena Kagan And The Court, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


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