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Reconsideration Of The Katz Expectation Of Privacy Test, Michigan Law Review

Michigan Law Review

This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, …

Republicanism And The Law Of Inheritance In The American Revolutionary Era, Stanley N. Katz

Michigan Law Review

This Article deals with the history of the law of inheritance during the era of the American Revolution, but its focus is actually more general, for it ultimately seeks to determine what sort of revolution we experienced. For the historian the problem is quite familiar, but a few observations seem pertinent. It is at least possible to argue that our colonial forefathers were not waging a revolution at all. Rather, one might say they were fighting what we should now call a colonial war of independence in which the overriding issue was "home rule." On this hypothesis, the main slogan …

The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen

Michigan Law Review

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York's affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance …

Juvenile Curfew Ordinances And The Constitution, Michigan Law Review

Michigan Law Review

Recognizing that a legislature must decide whether to enact a juvenile curfew without the benefit of conclusive data on the effectiveness of such laws, the remainder of this Note will focus primarily upon the constitutional issues raised by such ordinances. The freedom of movement that is limited by a curfew is, it will be argued, an unenumerated right protected by the ninth and fourteenth amendments. The constitutional rights of juveniles, however, -are not necessarily coextensive with those of adults. Certain characteristics of juveniles-in particular, their lesser capacity for reason and self-control-imply that the strength of their right to freedom of …

The Life And Times Of Boyd V. United States (1886-1976), Michigan Law Review

Michigan Law Review

In Boyd v. United States, the Supreme Court held that the fourth and fifth amendments create a zone of privacy encompassing an individual's person and property. The government, according to Boyd, cannot enter this zone, either by compelling an individual to testify against himself or by subpoenaing or seizing his books and papers for use as evidence against him in a criminal or quasi-criminal proceeding. The Court found an "intimate relation" between the two amendments such that the search and seizure of books and papers may be "unreasonable" even if conducted pursuant to a court order.

Over time, …

Urban Politics And The Criminal Courts, Milton Heumann

Michigan Law Review

A Review of Urban Politics and the Criminal Courts by Martin A. Levin

The Power Of The Fcc To Regulate Newspaper-Broadcast Cross-Ownership: The Need For Congressional Clarification, Michigan Law Review

Michigan Law Review

The controversy surrounding the FCC's Second Report and . Order, its appeal, and the subsequent decision in NCCB raises basic questions concerning the statutory authority of the FCC to promulgate rules concerning newspaper-broadcast cross-ownership. This Note suggests that the FCC, notwithstanding judicial affirmation in NCCB of the Commission's authority to adopt such rules, might well be exercising more authority than Congress intended it to possess under the Communications Act of 1934. This Note therefore concludes that, irrespective of the merits of the Second Report and Order, Congress should reexamine and clarify the scope of the FCC's power in this regard.

Defamatory Opinions And The Restatement (Second) Of Torts, George C. Christie

Michigan Law Review

This Article will focus on one important aspect of the Institute's work: the question of whether opinion, including ridicule, can be an independent basis of an action for defamation. Before undertaking that inquiry, however, some basic concepts regarding defamatory opinions must be understood. First, a statement of opinion can, of course, often be reasonably construed to imply the existence of facts that would justify the opinion. If a direct statement of those facts would be defamatory, then the statement of an opinion that implies the existence of those false facts would be defamatory and capable of supporting an action for …

A Reconsideration Of The Sworn Testimony Requirement: Securing Truth In The Twentieth Century, Michigan Law Review

Michigan Law Review

The purpose of this Note is relatively modest-to explore whether the traditional uncritical confidence placed in the sworn nature of testimony is justified in light of twentieth-century practice. As such, its intention is not to propose legal reforms, but rather to invite its readers to pause and reconsider a ritual too often taken for granted by the legal profession. To this end, this Note will examine the following factors influencing the character of the oath in modern times: the common-law and religious roots of the oath, the rise of nonreligious affirmation within the last century, the relationship between the oath …

Professional Discipline Of Solicitors In England, Michigan Law Review

Michigan Law Review

This Note begins with an examination of the disciplinary role of the Law Society, the solicitors' most important organization, and of the Society's attempt to prevent professional misconduct through regular financial audits and by providing advice to solicitors on questions of professional conduct and etiquette. It then describes the composition, function, and operation of the Disciplinary Tribunal, the statutorily created organization occupying the second level of the disciplinary system. Particular attention is directed toward recent statutory changes that provide for lay representation on the Tribunal. The Note concludes with a brief discussion of the appeals process and the procedures for …

Prohibiting Nonaccess Testimony By Spouses: Does Lord Mansfield's Rule Protect Illegitimates?, Michigan Law Review

Michigan Law Review

Not surprisingly, there has been widespread disagreement concerning the validity of the policies advanced in support of Lord Mansfield's Rule and the efficacy of the rule to promote those policies. This Note assesses the validity of this rule of evidence in order to determine whether it is the most appropriate method of safeguarding the interests affected by the litigation of legitimacy. First, the historical development and justifications for Lord Mansfield's Rule are identified, and, in section II, the extent of the current acceptance of the rule in the United States is delineated. Section III analyzes traditional arguments advanced in support …

Knowledge And Politics, Phillip Soper

Michigan Law Review

A Review of Knowledge and Politics by Roberto Mangabeira Unger

Metaphors And Models Of Law: The Judge As Priest, Philip Soper

Michigan Law Review

The reasons that prompt people to try to identify laws or legal systems in advance of encounter are varied. One is that laws, though less concrete than chairs, are equally capable of posing obstacles to conduct: they can be stumbled over. If the desire to avoid such contact were the sole reason for trying to decide "what law is,'' Holmes' aphorism would work fairly well: by predicting judicial decisions and calculating the likelihood of avoiding accompanying sanctions, one could play a good game of "bad man's" bluff around legal obstacles to chosen courses of action.

The claim that law is …

Central Problems Of American Criminal Justice, Francis A. Allen

Michigan Law Review

At periodic intervals during the present century the American "crime problem" has aroused agitated public discussion. At these times both publicists and ordinary citizens are likely to assume that the disturbing conditions have suddenly arisen and are wholly unlike anything experienced before. In considering the crime problem, the beginning of wisdom may lie in the discovery that this is a problem with a history. Crime and its control did not suddenly become significant in the late 1960s, at the end of World War II, or even with the launching of the prohibition experiment at the conclusion of the first great …

The Homer Of The Pacific: Melville's Art And The Ambiguities Of Judging Evil, Lee C. Bollinger

Michigan Law Review

Writing in 1952 of Herman Melville's work and its significance, Albert Camus praised Melville as the "Homer of the Pacific." Such Olympian fame was deserved, Camus wrote, because "[i]f it is true that talent recreates life, while genius has the additional gift of crowning it with myths, Melville is first and foremost a creator of myths." This essay concerns one aspect of those myths, Melville's exploration of man's struggle with the injustice and evil that originates from both within and without himself, and asserts its relevance to an understanding of the judicial process.

Giving Or Leaving--What Is A Will?, Olin L. Browder

Michigan Law Review

The question raised by the title of this essay should be essentially as simple as that: Do you want to give property, so that, having given it, it is no longer yours, or do you want to leave it behind at your death, directing who will receive it at that time? The statement of that issue suggests obvious differences in the consequences of inter vivos and testamentary dispositions. Most people also understand that a testamentary disposition invokes the elaborate machinery involved in the administration of a testator's estate, which confers special rights in the creditors and the spouse of the …

The Proposed "Science Court", James A. Martin

Michigan Law Review

This article discusses the desirability of establishing some kind of science court. Section I examines arguments in favor of the creation of a science court. Section II compares the truth-seeking devices of the scientific method and the legal system in order to assess their merits in assisting the public policymakers faced with issues involving scientific matters. Section III discusses the various models that have been proposed for a science court. Section IV concentrates on the model proposed by Dr. Arthur Kantrowitz, taking it as the preferred model, and defends it against some criticism while suggesting various refinements. Section V examines …