Digital Commons Network^™

Restoring The Power Of The Convening Authority To Adjust Sentences, Jacob R. Weaver

Michigan Law Review

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers …

The American Law Of Overruling Necessity: The Exceptional Origins Of State Police Power, William J. Novak

Book Chapters

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now "laid before the United States in Congress assembled." And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had …

Pham V. Chavez: Brief Of Amici Curiae Human Rights First And International Law Scholars In Support Of Respondent, James C. Hathaway

Appellate Briefs

Introduction and Summary of Argument: This amicus brief addresses the obligation of U.S. courts to construe federal statutes, including the Immigration and Nationality Act (“INA”), in a manner consistent with the nation’s obligations under binding international treaties. This has been an established canon of statutory construction since Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). Applying that canon here, this Court should avoid an interpretation of the INA that allows for detention without a prompt individualized determination by a court, independent of the detaining authorities and capable of ordering release, that detention is reasonable, …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie

Michigan Law Review

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …

Eight Months Later, Ellen D. Katz

Reviews

Rick Hasen’s Election Meltdown provides a concise and scathing analysis of what ails the American electoral process. Rick identifies four “principal dangers”—namely, voter suppression, “pockets of incompetence” in election administration, “dirty tricks,” and “incendiary rhetoric” about stolen or rigged elections. He argues that these dangers have contributed to past dysfunctional elections and are sure to infect future ones. Election Meltdown closes with some proposals to temper the identified dangers so as to make voting less difficult and restore confidence in the electoral process.

2020 Fall Class Schedule, University Of Michigan Law School

Class Schedules

Class schedule for the 2020 Fall semester at the University of Michigan Law School

Serving-Up The Ace: Understanding Adverse Childhood Experiences (“Ace”) In Dependency Adoption Through The Lens Of Social Science, Cynthia G. Hawkins, Taylor Scribner

University of Michigan Journal of Law Reform Caveat

Almost certainly, every child who enters the foster care system has endured some sort of trauma. It is unrefuted that childhood trauma correlates with mental, physical, and behavioral problems well into adulthood. In 1998, one of the first major studies of the relationship between certain forms of childhood trauma and adult behavior and disease was reported. Collectively, these traumas are called “Adverse Childhood Experiences” (ACE).

Today ACE refers to ten common forms of trauma that individuals may have experienced as children. To put this issue in perspective, it is currently estimated that 34.8 million children in the United States are …

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

Man’S Best Friend? How Dogs Have Been Used To Oppress African Americans, Shontel Stewart

Michigan Journal of Race and Law

The use of dogs as tools of oppression against African Americans has its roots in slavery and persists today in everyday life and police interactions. Due to such harmful practices, African Americans are not only disproportionately terrorized by officers with dogs, but they are also subject to instances of misplaced sympathy, illsuited laws, and social exclusion in their communities. Whether extreme and violent or subtle and pervasive, the use of dogs in oppressive acts is a critical layer of racial bias in the United States that has consistently built injustices that impede social and legal progress. By recognizing this pattern …

Class Actions And Private Antitrust Litigation, Albert H. Choi, Kathryn E. Sprier

Law & Economics Working Papers

When firms collude and charge supra-competitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.

Increasing Case Traffic: Expanding The International Criminal Court's Focus On Human Trafficking Cases, Nadia Alhadi

Michigan Journal of International Law

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case.

Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or …

Winks, Whispers, And Prosecutorial Discretion In Rural Iowa, 1925-1928, Emily Prifogle

Articles

Through the eyes of Charles Pendleton’s memoirs, this article walks through a rural community with a county attorney to consider how race, religion, gender, and sexuality influenced rural prosecutorial discretion in the early twentieth century. Rural communities like those in Buena Vista County, Iowa, where the article is centered, experienced “the law” through distinctly isolated geographies and social networks that lacked anonymity and thus shaped available methods of conflict resolution. But anonymity did not mean homogeneity. Ethnic, racial, and religious diversity created divisions within a community where social distance between individuals was small. Both onymity and diversity shaped who should …

Edwards V. Vannoy: Brief Of Law Professors And Social Scientists As Amici Curiae In Support Of Petitioner, Phoebe C. Ellsworth, Richard O. Lempert

Appellate Briefs

Amici are law professors and social scientists whose research and teaching address the Sixth Amendment right to a unanimous jury verdict and the demonstrated benefits that right produces. They have a strong interest in ensuring that this Court understands the full extent of those benefits when determining whether the rule announced in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), requiring jury unanimity in state and federal criminal trials, applies retroactively to cases on federal collateral review. In particular, they have an interest in affirming the wisdom of the Ramos rule and demonstrating that the rule is necessary to …

The Power Of A Clean Slate, J.J. Prescott, Sonja B. Starr

Articles

Tens of millions of Americans have criminal records, including about 20 million with felony convictions. Conviction records automatically trigger countless collateral legal consequences, such as occupational restrictions that bar employers from hiring qualified candidates. Moreover, research overwhelmingly shows that bearing a criminal record raises significant barriers to employment, housing, and various other opportunities. These persistent obstacles can overwhelm an individual’s efforts at reintegration and can aggravate poverty, inequality, and racial disparities in our society. And because factors like unemployment and housing instability contribute to crime risk, these effects in turn make society less safe.

Jones V. Mississippi: Brief Of Erwin Chemerinsky, Eric M. Freedman, Craig Futterman, Martin Guggenheim, Bernard E. Harcourt, Shani M. King, Jeffrey L. Kirchmeier, Issa Kohler-Hausmann, Leah Litman, Christopher Seeds, Alison Siegler, Carol Steiker, David A. Strauss, Carlos Manuel Vazquez, Gideon Yaffe, Steven Zeidman As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Amici are scholars of federal courts and/or criminal law, studying the operation and purposes of federal jurisdiction and criminal law. Although they have divergent legal and political outlooks, amici share a keen interest in the federal courts and criminal law, having published extensively on these topics and collected decades of experience examining issues implicated in this case.

Amici share a concern that the lower court’s judgment threatens the rule of law this Court announced in Miller v. Alabama, 567 U.S. 460 (2012) 4 and affirmed in Montgomery v. Louisiana, 136 S. Ct. 718 (2016) that life without the …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

The Sexual Misconduct Of Donald J. Trump: Toward A Misogyny Report, Ruthann Robson

Michigan Journal of Gender & Law

The numerous allegations of sexual misconduct—unwanted, unwelcome, often aggressive sexual behavior—levied against Donald Trump merit attention and redress. Despite obstacles to civil remedies, there has been some litigation, but it has mostly been unsatisfactory. The many allegations reported in the media have not been amenable to judicial, legislative, executive, or political resolution. Women, including women who allege Trump committed sexual misconduct against them when they were minors, have generally not been afforded the remedies to which they are entitled.

Because litigation and media accounts have proven inadequate to the task of addressing Trump’s sexual misconduct, there should be a government …

Putting The Fetus First — Legal Regulation, Motherhood, And Pregnancy, Emma Milne

Michigan Journal of Gender & Law

The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or …

Symbolism Over Substance: The Role Of Adversarial Cross-Examination In Campus Sexual Assault Adjudications And The Legality Of The Proposed Rulemaking On Title Ix, Hunter Davis

Michigan Journal of Gender & Law

Traditionally, it has been understood that campus sexual assault adjudications need not take on the formalities of the justice system. Since the consequences faced in campus adjudications are considerably less than punishments faced in the justice system, less process is owed under the Due Process Clause. However, in September 2018, the Sixth Circuit reconceived what constitutes due process in campus sexual assault adjudications in the case of Doe v. Baum. The court found that in cases involving conflicting narratives at public universities, the accused or his agent must have the ability to cross-examine his accuser in the presence of …

Fixing The Problem Of Incompetent Defense Counsel Before The International Criminal Court, Matthew Catallo

Michigan Journal of International Law

Throughout the latter half of the twentieth-century, defense counsel arguing before international criminal tribunals provided notoriously ineffective assistance. This note examines whether defense counsel similarly fail to provide competent assistance at the International Criminal Court––and if they do so for similar reasons. In examining the ICC’s procedural and regulatory framework, this note highlights the systemic inequities at the Court that favor the prosecution and devalue the defense, thereby hindering the acquisition of competent defense counsel and promoting the retention of incompetent defense counsel.

To address these iniquities, this note promotes various administrative reforms, all of which could be implemented without …

Civil Rights Ecosystems, Joanna C. Schwartz

Michigan Law Review

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded one hundred times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil …

Expungement Of Criminal Convictions: An Empirical Study, J.J. Prescott, Sonja B. Starr

Articles

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge in legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to de-identified data that overcome that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable nonrecipients in Michigan. We offer three key sets of empirical findings. First, among those legally …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Understanding Violent-Crime Recidivism, J.J. Prescott, Benjamin Pyle, Sonja B. Starr

Articles

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

The Right To A Well-Rested Jury, Caroline Howe

Michigan Law Review

The vast amount of control that state trial judges exercise over the dynamics of their courtrooms is well established. The length of trial days and jury deliberations, however, has received little scholarly attention. Longstanding research has conclusively established the disruptive effects of sleep deprivation on many of the mental facilities necessary for juries to competently fulfill their duties. By depriving juries of sleep, trial judges may be compromising the fair rights of criminal defendants for the sake of efficiency. This Note argues that trial judges must use their discretion to ensure juries are well-rested, keeping jurors’ needs in mind. Further, …

Front Matter, Michigan Law Review

Michigan Law Review

Front matter for Volume 118, Issue 6 of the Michigan Law Review.

Editors' Note, Michigan Law Review

Michigan Law Review

A reflection on the origins of the Michigan Law Review book review issue.

Equality's Understudies, Aziz Z. Huq

Michigan Law Review

Review of Robert L. Tsai's Practical Equality: Forging Justice in a Divided Nation.